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REPORTS OF CASES
ADJUDGED XV TBB
HIGH COURT OF CHANCERY,
THE VICE-CHANCELLOR SIR JOHN STUART.
J. W. DE LONGUEVILLE GIFFARD
(op thb ihmbe tbvplr),
ESQCIRE, BARRISTER-AT-LAW.
VOL. IV.
1 8 6 3 — 4.
LONDON: . •
WILDY k SONS, LINCOLN'S INN ARCHWAY, CAREY STREET,
f ato ^ookstlltrs ani ^nIrHs|ers.
HODGES & SMITH, GRAFTON STREET, DUBLIN.
1869.
a^-fTirin
PRINTED BY
CHARLES JONES, WEST HARDING STREET.
JUL 10 1901
Lord Westbuby
Lord Cranwobth
Lord Romillt
Sir James Lewis Knight Bruce v
Sir George James Turner
Sir Richard Torin Eindersley
Sir John Stuart
Sir William Page Wood.
Sir Boundell Palmer
Sir Robert Collier.
Lards Chancellors,
Master of the Rolls.
Lords Justices.
Vice^ Chancellors,
Attorney^ General.
Solicitor'- General.
A TABLE
OP THE
NAMES OF THE CASES REPORTED
IN THIS VOLUME.
PAQ%
Adams^ Elsey r. ----- - 398
Adams, Shafto ».------ 492
Adams v. Sworder (Bankruptcy — Composition — Incapacity to
Sue) 287
Allen, Coppard ».------ 497
Alt V. Alt (Consent to Marriage on Faith of Promise to Settle
Wife's Property) - - - - - 84
Attorney-General, Sevan w. - - - - - 361
Attorney-General v. The Tewkesbury and Malvern Railway
(Injunction — Company bound by Deposited Plans — 73 s.
of Kailway Clauses Act) ----- 333
Baldwin, Edwards — Wood v. - - - - -613
Bank of Wales, Croskey t;. - - - - -314
Bargent v. Thomson (Forfeiture for Nonrepairs — Injunction) 473
Baring, Trail v. ----- - 485
Bascombe, Pelly ». - - - - - - 390
Bate, Rhodes v. - - - - • -670
vi TABLE OF CASES.
PAOK
Bayley v. Williams (Pressure — Compounding a Felony — Se-
curity void) ------ 638
Bedborough, Depree v. - - - - - 479
Beeston v. Marriott (Company and Contractor — Chattels taken
in Execution) ------ 436
Bevan v. The Attorney-General (Will — Demonstrative
Legacies — Deficiency of Fund) - - - - 361
Bonser w. Bradshaw (Costs a Charge on Estate Recovered —
Infant Heir-at-Law) ----- 260
Bowie, Selby t;. - - - - - - 300
Bradshaw, Bonser t?. - - - - - - 260
Brown, Shepard w. - - - - - - 208
Bull, Pratt V. 117
Bum, Kemp ».------ 348
Burkinshaw, Turner ».----- 399
Carew v. Cooper (Assignment of Military Pension — Indian
Army— 46 Geo. 3, c. 69 ; 47 Geo. 3, c. 25) - - 619
Charlton v. Coombes (Demurrer by Solicitor — Confidential
Communication — Fraud) - - - - 372
• Charlton 'v. Coombed (Fraud by Wife — Husband assenting
party liable for) - - - - - - 382
Clark t?; Clark (Administration — Wills Act — ^Edels v. Johnson,
•1 Giir. 29 ; Pearmain v. Twiss, GifF. 130, observed on) -
Clarke v. Mackintosh, Mackintosh v. Clarke (Specific Per-
■ .^ formance — Misrepresentation) - - - - 134
^Clay,.. Swainston r. - - • - . . 137
"Coolcc, Williams v. - - - - - • - 343
. Coombes, Charlton v. - - - - - - 372
VCoombes, Charlton v. - - - - ... - 332
^'.Cpdper, Carew v. - - - - - - 619
:CcJbper V. Gostling (Conveyance by Married Woman to Cpm-
•• •' . pany — Section 7 of Lands Clauses Consolidartion Act)*. - 449
Qftp^Murd V. Allen (Inspector— ^Breach of Trust — Costs) . - 497.
CorporiBttion of Bradford, Slee v. - - - - 262
• CresSwell v, Dewel (Wife's Chose in Action — Payment to
Husband — Breach of Trust) - - - - 460
TABLE OF CASES. Vll
PAGR
Croskey v. The Bank of Wales (Demurrer — Bill by one
Shareholder on behalf of others alleging Fraud — Payment
on Allotment not a Call) ----- 314
Daniel, Gibbs r. - - - - - -1
Davies v. Dayies (Parental Influence — Gift set Aside) - 417
Depree v, Bedborough (Vendors and Purchasers — Forfeiture
of Deposit) - - - - - - 479
Dewell, Cresswell ». - - - - - - 460
Ed wards- Wood v. Bald win (Mutual Payments — Hotel-keeper's
Bill — Account in Equity) - - - - 613
Elsey V, Adams ( Injunction — OflBce Copies — Affidavit in Court) 398
Eno V Tatham (Will— "Contrary Intention "—17 & 18 Vic.
c. 113— Woolstencroft v. Woolstencroft, 3 Giff. 263, 2 De
G. J. & F. 347) 181
Femie, Young r. - - - - - -577
Finch, Thornton t?. - - - - - - 595
Fooks, Strange t?. ----- - 408
Gibbs o. Daniel (Solicitor and Client — Purchase Set Aside —
Pressure) --.-,_ l
Gardner, Gurnell w. - - - - - - 626
Gostling, Cooper ». - - - - - . - 449
Great Western Railway Company, Mackintosh r. - - 683
Gregory, Jones v. - - - - . - , - 468
Gurnell v. Gardner (Lien — Parol Authority to Sell Chattels^ 626
Headland, Williams v. - - - - * •. 505
Heath 1;. Lewis (Divorce — Separate Estate — Right of Children) 665
Hemings rt Pugh (Demurrer — Principal and Agent— -Account ' .•
— Phillips V, Phillips, 9 Hare, 471 ; Dinwiddie v. Bailey; - -
6 Ves. 136, considered) - - - - - 456
Hoare's Trusts,. Re ; Trustee Relief Acts, Re (Marriage * ^ . .
Settlement — Approval of Draft by Husband— Covenant •. * •>-.
to Settle After-acquired Property) . - - -^y 2^^ ''
Holden. v. Ramsbottom (Will — Bequest of Plate — Silver ?ind" *.-. • '
Plated Service) - ' - • . - . ;Vr!205
Hughes's Trusts ( Settlement — After-acquired Property of Wife
. — Graftey v. Humpage, 1 Beav. 46, followed) - ."- 432 -
Vlll TABLE OF GASES.
PAOK
Johnson^ Smith ». - - - - - - 632
Jones V. Gregory (Demurrer to Bill by Heir-at-law to set aside
Will devising Real Estates on the Ground of Fraud) - 468
Jones, Merryweather ».----- 509
Kemp V. Burn (Trustees ordered to pay Costs — Refusal to
Account)- ..---- 348
Lacon v. Liffen (Bankruptcy — Order and Disposition —
Advance to Secure Antecedent Debt — Equitable Interest
in Ships) - - - - - - 75
Lancashire and Yorkshire Railway Company, Wrigley v.
(Deposited Plans — Injunction) - - - - 352
Lawford, Samuda v. - - - - - - 42
Ley, Price w. - - - - - - - 235
Lewis, Heath v. ----- - 665
Lewis, O'Brien v. - - - - - -221
Lewis, 0*Brien ». - - - - - - 396
Liffen, Lacon t;. - - - - - - 75
Light, Scammel ». - - - - - - 127
Lodge V. Pritchard (Partnership — Joint Debts — Separate
Estate of Partners — Costs) . . - . 294
London, Brighton, and South Coast Company, Phillips v. - 46
London, Chatham, and Dover Railway Company, Russell r. - 403
Lonsdale, Prideaux w. - - - - - - 159
Mackintosh, Clarke v. - -. « - - 134
Mackintosh v. Great Western Railway Company - - 683
Malherbe, Simpson v, - - - - - 707
Marriott, Beeston t;. - - - . - * . 436
Meredith, Sweet t;. - - « - - . 207
Merryweather v. Jones (Bill by Divorced Wife— Settlement
—Infant) - - , . . - 509
Nickson, Parker V. - - - - . -311
Nickson, Parker w. - - - - - - 306
O'Brien v. Lewis (Solicitor and Client— Professional Relation
—Gift — Account) - - - . - 221
O'Brien v. Lewis (Solicitor's Lien for Costs) - - - 396
TABLE OF CASES. IX
PAOR
Parker 0. Nickson (AmendmeDt — Inoonsistent Case — Motion
to take Bill off File— Costs) - - - - 31 1
Parker v. Nickson (Demurrer — Insufficient Allegation of Title) 306
Patch V. Ward (Demurrer — Opening Foreclosure Decree as to
One Party) ..-..- 96
Pelly t?. Bascombe (Entry by Stranger on Infant's Lands —
Statute of Limitations) ----- 390
Phillips V. The London^ Brighton, and South Coast Railway
Company (Permanent Diversion of Public Roads —
Injunction) - - - - - - 46
Pratt V. Bull (Order of Probate Court not a Charge on Land) 117
Price V. Ley (Mutual Mistake — Contract Rescinded — Evi-
dencCy Parol) ------ 235
Prideaux v. Lonsdale (Marriage Settlement, Nature of, not
Understood by Wife — Fraud on Marital Right — Ac-
quiescence) ------ 159
Pritchard, Lodge w. - - - - - - 294
Pugh, Heming t?. ----- - 456
Ramsbottom, Holden v. - - - . - 205
Ramsden, Thornton 0. - - - - -519
Round, Wilson t?. - - - - - -416
Russell V, The London, Chatham, and Dover Railway Com-
pany (Motion for Injunction by Defendants Refused) - 403
Rhodes t;. Bate (Professional Advice — Undue Influence —
Mortgage) ------ 670
Samuda ?n Lawford (Specific Performance — Decorative Repair
— Compensation) - - - - - 42
Saunders's Estate, Jie; Saunders v. Watson (Felony — Volun-
tary Settlement on Wife invalid against Crown) - - 179
Scammell v. Light (Demurrer — Bill for Account against Com-
mittee— Jurisdiction in Lunacy) - - - - 127
Seaton v. Staniland (Bill to Rectify Lease of Infant's Pro-
perty— Demise too Comprehensive) - - - 61
. Seed, Wroe 17. - - - - . - - 425
Selby V. Bowie— (Sale— Trustee— Costs) - - - 300
X TABLE OF CASES.
PAGE
Sibley, Wilkins v. ... - 442
Simpson v, Malherbe — Collusive Bill — Concealed Purpose - 'i 07
Settled Estates Acts, 1854 and 1856, Re (Sale under — Subsale
at Improved Price — Practice) - - - - 90
Shafto V. Adams (Settlement by Expectant Heir) - - 492
Shepard v. Brown (Demurrer — Discovery — Account — Juris-
diction in Equity — Phillips v. Phillips, 9 Hare, 471 - 208
Shuttleworth's Estates Act, Re Blackburn Railway Amalga-
mation Act, Lancashire and Yorkshire Railway Company,
and the Lands Clauses Consolidation Act - - 87
Slee V. Corporation of Bradford (Local Board of Health —
Local Government Act — Delegation of Powers to Com-
mittee— Approval of Plans) - - - - 262
Smith V. Johnson (Copyright — Separate Publication, 5 & 6 Vic.
c. 45, s. 18) 632
Strange v. Fooks (Principal and Surety — Loss of Security —
Discharge of Surety pro tanto) - - - . 408
Swainston t;. Clay (Bankruptcy — Order and Disposition —
Money Advanced on Ships) - - - - 187
Sparrow, Taylor ».------ 703
Staniland, Seaton v. - - - - - -61
Sweet V. Meredith (Specific Performance — Decree for Default
Contract rescinded — Costs) - - - - 207
Sworder, Adams v. - - - - - -287
Tatham, Eno v. - - - - - - 181
Taylor v. Sparrow (Custody of Title Deeds — Tenant for Life) 703
Tewkesbury and Malvern Railway Company v. Attorney
General .------ 333
Thompson r. Bargent- - . . - . 473
Thornton v. Finch (Judgment — Equity of Redemption —
Schedule 27 & 28 Vic. c. 112) - - . . 505
Thornton v, Ramsden (Landlord and Tenant — Building Leases
— Improvements — Pilling v. Armitage, 12 Ves. 78, con-
sidered) ------- 519
Trail v. Baring (Insurance Company — Misrepresentation) - 485
TABLE OF CASES. XI
PAliK
Turner v. Burkinshaw (Principal and Agent — Accounts-
Production of Documents) - - - . 399
Ward, Patch r. - 96
West i;. West (Will — Vesting Condition — Booth v. Booth.
4 Ves.) 399
Wetherell v. Wetherell (Will — Gift by Implication — Annuity
— Claim to Dower — Forfeiture — Election) - - 51
Wilkins v. Sibley (Trustee— Breach of Trust— Trustee's
Share in Trust Fund liable to make good Deficiency) - 442
Williams, Bayley r. 638
Williams t;. Cooke (Equity to Settlement out of Proceeds of
Real Estate — Mortgage by Husband and Wife) -
Williams v. Headland (Indemnity to Executors) - - 505
Wilson V. Bound (Charging Order as to Costs) - - 416
Wrigley v. The Lancashire and Yorkshire Railway Company
(Injunction — Deposited Plans — Boundary Line of Land
described undefined — Book of Reference) - - 352
Wroe V. Seed (Misconduct of Executors — Costs of Suit) - 425
Young 17. Femie. (Patent — Construction of Specification —
Distinction between Mechanical and Chemical Dis-
coveries) ------- 577
REPORTS OF CASES
ARGUED AND DETERMINED
IX THE
f^igi) Court Df Cijancerp.
1862-3.
1802.
.7/in. 8,20,21,
29, 24, 26, 28.
GIBBS V. DANIEL. Mayz,
This biU was filed by T. W. Gibbs, builder, of foKlTof ^^
Clifton, and his three daughters, Mary B. Gibbs, Ann *he equity of
Gibbs, and P. D. Robjent, and Florence Elizabeth his their client's^
wife, against Edward Daniel and Alfred Cox, solicitors, LTd^"*^"*
for the purpose of having set aside a purchase by the ^^^'^ough
defendants of the equity of redemption in certain build- citor had been
ing land near Clifton, on the ground that it was made the defendants
during the continuance of the professional relation, and nct^assoifdtws
also on the ground of pressure and undervalue. j"st before the
T»i-« 1 111 i/.-r contract for
i3y his marriage settlement, dated the 9th of June, purchase; it
1823, Thomas Washer Gibbs, one of the plaintiffs, and KKh-
his wife f since deceased) were entitled to a life interest in citor had, with
^ ^ ^ tlie knowledge
various sums of trust money amounting to the sum of of the defend-
about 1230/.; his three daughters, and his son William properly dis-
Kinton Gibbs were entitled to shares in the reversion of Su^J^^d'that
the same after his death. ^*>e defendants
liad concealed
Upon the 7th of February, 1835, the trustees of the from him an
important fact.
The intenrention of another solicitor or adviser who, with the knowledge of the purchaser,
neglects or does not properly discliarge his duty, is not sjufllcient to sujiport a purchase
by a solicitor from bis client.
VOL. IV. B
CASES IN CHANCERY.
1802.
QlBBS
V.
Daniel.
Statement,
settlement advanced to T. W. Gibbs the sum of 1230/.
out of the trust fund, on having such sum secured to them
by mortgage, dated the same day, of certain property
belonging to T. W. Gibbs, at Bishops' Lydeard, Somerset.
On the 7th of May, 1840, Mr. Gibbs was adjudicated
a bankrupt, and obtained his certificate in the September
of the same year.
By an indenture dated the 15th of June, 1841, made
between his assignees in bankruptcy of the one part, and
the bankrupt of the other part, in consideration of the
sum of 300/. paid by the latter to his said assignees, they
assigned to him all the life interest which at the time of
his bankruptcy he possessed in the said trust sum of
1230/., and all the interest of the assignees therein ; and
also the equity of redemption in the property at Bishops'
Lydeard.
Some time before the year 1845 or 1846, Mr. Gibbs
sold the property at Bishops' Lydeard, and the surviving
trustee of the settlement received the 1230/. trust money
secured thereon ; but the trustee subsequently from time
to time lent the whole of it back to him.
On the 17th of July, 1847, T. W. Gibbs purchased
from the Rev. J. H. Sweet certain property called
Harding's Paddock, situate near Durdham Down, Clifton,
for the sum of 500/. or thereabouts, which money (it was
alleged) formed part of the 1230/, trust fund so lent to
him.
The property, of which the purchase was now sought
to be set aside, called Amoury Close, also situate near
Durdham Down, Clifton, and adjoining Harding's
Paddock, was purchased by T. W. Gibbs from the Rev.
J. H. Sweet in 1848, in consideration of 495/. and was
conveyed, as the plaintiffs alleged, in pursuance of an agree-
ment, to John Pring, the surviving trustee of the settle-
ment, to be held by him (with Harding's Paddock and
other property since sold) in trust for T, W» Gibbs and
CASES IN CHANOEBT.
hifl children by way of security for the trust moneys of
Ihe 8ud settlement. Accordingly^ by an indenture dated
the 20th of March, 1848, the leasehold premises held on
lives called Amoury Close, were assigned to the said
John Pring; the purchase-money being paid by T. W.
Gibbs, partly out of his own moneys and partly by
moneys raised on mortgage in the following manner.
By a deed of the 27th of March, 1848, and made
between John Pring of the one part, and Christopher
James Thomas of the other part, the leaseholds called
Amoury Close were mortgaged by T. W. Gibbs to the
Bristol Building and Investment Society ; and by another
deed of the 15th of May, 1848, between the same parties,
the same premises were further charged to secure a fur-
ther sum and interest On the 19th of December a third
indenture (a second further charge) was executed between
the same parties, and indorsed on the deed of the 15th
of May.
The plaintiff, T, W. Gibbs, alleged that by an inden-
ture dated the 18th of July, 1850, he conveyed Harding's
Paddock (except a small portion) to John Pring in fee
for a nominal consideration, no money having passed,
although the consideration was stated to be 495/. ; and
that by another deed, dated the following day, the said
John Fring granted the same to William Kinton Gibbs
(the son of T. W. Gibbs), in lots for building purposes,
the ground-rents in fee being reserved to John Pring.
These ground-rents were from time to time all sold, and
the proceeds received by T. W. Gibbs.
Four days subsequently a declaration of trust (ex-
hibited in the cause) was signed by John Pring, dated
the 22d of July, 1850, whereby he declared that he held
the equity of redemption in the said leasehold on lives,
called Amoury Close, together with the small remaining
portion of Harding's Paddock and other property since
sold, upon trust for the said T. W. Gibbs and his chil-
B 2
lSfl2.
OlBBS
V,
Danibl.
SMifMnt.
CASES IN CHANCERY.
1862.
Statement.
dreiiy and as security to himself for the said trust sum
of 1230/., the whole of which had been advanced to
T. W. Gibbs.
On the 5th of July, 1851, the leasehold property
called Amoury Close was made subject to a third further
charge.
The moneys raised by the deeds of mortgage and fur-
ther charge of the 27th of March, 1848, the 15th of
May, 1848, the 19th of December, 1848, and the 5th of
July, 1851, amounting together to 1400/. (and further
secured by three policies effected by Mr. Gibbs in the
Scottish Union OflSce, on the life of Miss Hounsell,
one of the lives on which the leaseholds were held) were
paid to T. W. Gibbs, and applied by him partly in paying
the residue of the purchase-money for Amoury Close,
and the costs and expenses, and partly in erecting houses
and buildings on Amoury Close. The calls and monthly
payments on the mortgage and charges and the premiums
on the policies were paid by T. W. Gibbs, on behalf, as
he alleged, of himself and his children.
In September, 1851, Amoury Close and the three
policies of assurance were transferred by John Pring
into the name of the plaintiff Mary Bryant Gibbs, on
the understanding, as the plaintiffs alleged, that she was
to hold the same for the benefit of her father for his life,
and after his death for herself and the other children, by
way of security for the said trust moneys. In the deed
of transfer, dated the 23rd of September, 1851, 100/. was
stated to have been paid by Mary B. Gibbs by way of
consideration, but this sum was alleged to have been
merely nominal. On the Ist of August, 1852, a part of
Harding's Paddock was conveyed by William Kinton
Gibbs to the plaintiff Ann Gibbs, to be held by her, as
the plidntiff alleged, on the like understanding.
In the beginning of the year 1852, T. W. Gibbs (as
the plaintiffs alleged, on behalf of himself and bis chil-
statement*
CASES IN CHANCERY.
dren) entered into a treaty with the Dean and Chi^ter of 1862.
Bristol, under the 14 & 15 Vic. c. 104, for the purchase gibbs
of the reversion in fee of Amoury Close, and with that daniel.
view the property was valued in March, 1852, by a
Mr. Horwood, a surveyor at Bristol, as freehold building
land, at the sum of 6000/.
On the ()th of August, 1862, the mortgage debt of
1400/. was transferred by the building society to the
Rev. William Vassall, who was a client of the defendants
Messrs. Daniel & Cox, and, to secure the same and inter-
est at five per cent., the premises called Amoury Close
were, by deed of that date, also conveyed by Mary B.
Gibbs to the said William Vassall ; and tlie three policies
were also assigned to him by Avay of collateral security,
the premiums being still to be paid by the plaintiff
T. W. Gibbs.
On the 8tli of September, 1853, a renewed lease of
Amoury Close was granted by the Dean and Chapter
to Mary B. Gibbs, as it was alleged, to be held by her
on the understanding before stated.
On the 26th of January, 1854, part of Harding's Pad-
dock, on which two houses, now known as 7 and 8,
Wellington Park Villas, Avere then erected or in process
of construction, was conveyed by Ann Gibbs to Mrs.
Ann Vassall, to secure the sum of 500Z. and interest,
which sum of 500Z. was to have been held, as alleged,
for the benefit of T. W. Gibbs for life, and after his
death of the other children, but was advanced to T. W.
Gibbs.
By an indenture of the lltli of September, 1854, in
consideration of the sum of 800/. therein stated to have
been paid by the plaintiff Mary Bryant Gibbs, the rever-
sion in fee expectant on the lease of the 8th of September,
1853, in Amoury Close, was conveyed to and to the use
of Mary B. Gibbs and her heirs for ever.
By an indenture dated the 16th of September, 1854,
statement.
CASES IN CHANCERY.
1862. Mary B. Gibbs granted to John Warren and his heirs
GIBBS eight lots of building ground^ part of Amoury Close,
Daniel reserving the rents of 4Z. lOs. per lot on four, and on the
other four the i*ent8 of 3/. each lot. By another inden-
ture, dated the following day, Mary B. Gibbs granted
four other lots of the said Amoury Close in fee to Joseph
Munn and his heirs, reserving ground-rents of 4/., 4/. 10^.,
3/., and SI. respectively ; and on the next day, by a third
indenture, she granted four other lots of the same close
to the plaintiff Ann Gibbs and her heirs, now knowfi as
2, 3, and 4, Wellesley Place, and a fourth plot, sub-
sequently known as No. 3, Douro Place, but reserving
ground-rents of 4/. 10^. on the first three, and of 3^ on
the last.
Part of the small remaining portion of Amoury Close,
worth about 60/., was sold ; and the remainder, of the
ralue of about 30/., was retained by Miss Gibbs.
By an indenture of mortgage, dated the 19th of Sep-
tember, 1854, executed the 22nd of January, 1855, cer-
tain other parts of Amoury Close, together with the
messuages and cottages thereon, were conveyed by Mary
B. Gibbs unto and to the use of the said William Vassall
and his heirs, with a proviso for redemption on repayment
of 1400/. and interest; by another indenture of mortgage,
dated on the same 19th of September, 1854, but not
executed until the 7 th of November, 1855, the ground-
rents reserved by the indentures of grant of the 16th,
17th, and 18th of September, 1854, and all the remain-
ing portion of the premises (except a small part worth
about 60/.) were conveyed by Mary B. Gibbs to and to
the use of Miss M. M. Cox, with a proviso for redemp-
tion on repayment of 1000/. and interest.
Messrs. Daniel & Cox transacted the whole business
connected with the above lease, renewal, purchase of
reversion, grants, and mortgages on behalf of the plaintiff.
Statement,
GASES IN CHANCERY.
On the 10th of September, 1855, the defendants wrote 1M2.
to Mr. Gibbs as follow : —
*' !Mr. Sweet has sent requesting payment of several
mims due for insurance, amounting to 6/. I9s, 10^., and
unless paid forthwith the policies will be avoided. Miss
Cox has written for her interest, and indeed we are quite
tired of the unsettled state of matters ; pray come at once
and put things on a footing which may save you and our*-
aelves so much trouble."
On the 21st of September they again wrote as
follows : —
'^ ^Notwithstanding our last letter to you, we found
&om Mr. Sweet yesterday that you had not paid the
insurance premium, and we were compelled to do so, and
you have not thought fit to see us on the subject. It is
utterly impossible that we can go on in this manner, and
unless you can put matters on a better footing we must
look into the business with a view to a final settlement
of all your afiairs."
The bill alleged that Amoury Close and the two
houses on part of Harding's Paddock were held by Mary
Bryant Gibbs and Ann Gibbs in trust for their father
and his children ; and that the defendants, being employed
as solicitors as above stated, were well aware of this
fact The defendants, by their answer, alleged that they
believed that by a deed of release, dated the 26th of
January, 1854, Mr. Pring was released by T. W. Gibbs
and his children from all claims under the settlement.
This release, which was put in evidence in the cause, was
dated the 26th of January, 1854, and made between the
plaintiff T. W. Gibbs and his three daughters of the one
part, and the said John Pring the younger of the other
part, reciting that all the children had attained twenty-
one, and that Pring had invested the trust sum of 1230/.
in the purchase of land, and in partly erecting villas
CASES LN CHANCERY.
18G2.
Gibus
r.
State ment.
thereon, in Wellington Park Road, Clifton, numbered
5, 6, 7, 8, 9, 10, 15, and 16; and that, in order to com-
plete the said villas, he had likewise raised 600/. on Nos.
5 and 6, the like amount on Nos. 7 and 8, the like on
Nos. 9 and 10, and the like on Nos. 15 and 16, all by
way of mortgage ; and that he had conveyed Nos. 5 and 6
to Mary Bryant Gibbs, also 7 and 8 to Ann Gibbs, 9 and
10 to Florence Elizabetli Gibbs, and 15 and 16 to William
Kinton Gibbs (subject as aforesaid), as and for their
shares in the said trust sum of 1230/. ; they, the parties
of the first part, declared their approbation of the said
application of the fund, and released John Pring, his
heirs, executors, and administrators from the trusts
absolutely.
On this i)oint the defendants further alleged that they
believed there was no such understanding as that in the
bill alleged, and that Miss Gibbs obtained the renewal of
the lease for herself, subject to the rights of the mort-
gagees. They denied that, eitlier from conversations or
from the title deeds, they were ever aware of the existence
of a trust. As to Vassall's mortgage, the abstract was
furnished by Mr. William Sweet, solicitor, on behalf of
Mary B. Gibbs ; and the instructions for the loan were
received from T. W. Gibbs.
Some time before the 8th of September, 1853, the
defendants were informed by T. W. Gibbs that he (on
behalf of his daughter) had entered into a treaty for the
purchase of the reversion. The defendant Cox said he
believed a valuation by Mr. Horwood was produced to
him, but of what amount he could not set forth ; such
valuation, if tlie same Avere i)roduced, not being deemed
sucli as tliey coukl rely upon or attend to in any way on
behalf of their cllcnt-s. The defendants declined to act
on such valuation, and told the i)laintiff T. W. Gibbs
tliat they should require a valuation to be made by
Messrs. Pope on behalf of their clients, the mortgagees.
CASES IN CHANCERY.
The purchase deed of the reversion was prepared by the
defendants acting for Mary B. Gibbs aIone> through the
instructions of her fatlier. As to the mortgages to
William Vassall and Miss Cox, the defendant Alfred
Cox alleged that before they were executed, he stated
that, judging from the statements of T. W. Gibbs, he
believed that the property which was the subject of the
present suit would be a sufficient security for the 1400/.
intended to be secured to William Vassall, and the 1200/.
intended to be advanced by Miss Cox, but that they
(the defendants) should require another valuation. Ac-
cordingly, Mr. Pope was instructed at the time when the
deed of conveyance was in the hands of the dean and
chapter, and the plaintiff Mary B. Gibbs had contracted
with Warren and Munn for the gi*ants to them ; and he
the defendant, therefore instructed Mr. Pope to assume
that the grants were actually executed.
Mr. Pope's valuation was- as follows: — "We are of
opinion that the value of Mr. Gibbs's freehold ground,
Wellington Park, Durdham Down, is •2400/. In esti-
mating the sum we took into consideration the present
state of the premises and the Icttings as represented by
hira. We are of opinion that the two double cottages
and the one inhabited by Mr. Gibbs, the two small
cottages and stable, and their site and ground attached,
are worth 1100/., making the total present value of the
estate 3500/." The defendants said that at the time of
the purchase by them no houses had been built on the
plot of ground comprised in the grant of the 18th of
September, 1854, so that, in fact, the said valuations
being based upon the assumption of the ground-rents
being adequately secured was too favourable. As to
the purchase of the 11th of September, 1854, they
alleged as follows : —
" When the purchase by the plaintiff Mary B. Gibbs
of the fee simple of the premises was being negotiated.
1802.
GlBB:i
V,
Daniel.
Statement*
10
CASES IN CHANCERY.
1862.
QlBBB
V,
Bamiel.
Statement.
it was in the first instance 8upi)osed that it might suffice
for her to raise by mortgage the sum of lOOOt, but be-
fore the money had been advanced it became evident that
1200/. was required to pay the purchase-money for the
fee simple of the premises and the expenses attending
the purchase, and for the other purposes to which the
sum of 1200/., raised as afterwards mentioned, was applied
as afterwards stated, and we accordingly procured a
client of ours. Miss M, M. Cox, to advance that sum
to the plaintiff Mary B. Gibbs, and she accordingly paid
to us for the plaintiff Mary B. Gibbs the sum of 1200/.
on the 13th of July, 1854, which sum was applied as
follows — the sum of 800/. in payment of the purchase of
the fee simple, together with 48/. 13*. 6rf. interest thereon,
57/. 9s. 6rf. to the solicitors for the dean and chapter for
costs and valuation fees ; 152/. 10^. advanced by us for
payment of the renewal fine of said lease, with 6/. 3^. 5c/.
interest; 69/. 10^. owing to us on an equitable security,
dated the 27th of May, 1853, given to us by the plaintiffs
Thomas W. Gibbs, Mary B. Gibbs, and Ann Gibbs, with
3/. 16*. 2d. interest; 6/. Is. for premiums paid by us for
insurance of lives on which the property was held ; and
the residue, amounting to 551. IGs. od., retained by us in
part of our costs, it being arranged that the residue of
our costs should stand over."
Further, they said that Wm. Vassall and Miss Cox
had continued to be their clients, and that the mortgages
were prepared by them acting as solicitors both for Mary
B. Gibbs and the mortgagees respectively; but they
denied that they acted under instructions from T. W.
Gibbs alone* As regards the mortgage foi* 1200/. the
defendant Alfred Cox alleged he was positive that the
plaintiff Mary B. Gibbs attended him on more than one
occasion, and was fully cognisant of and sanctioned the
Infusing of the sum.
The plaintiffs in thdit amended bill (after the draft
CASES IN CHANCERY.
bills of costs had been produced in the cause) alleged
that the law business arising out of the renewed lease,
the purchase of the reversion, and the mortgages, was
charged against T. W. Gibbs in their original drafts of
bills of costs and in their books ; but in some of the fair
copies and late bills of coats it was charged to Mary B.
Gibbs. They also sdd that no account or memorandum
was ever given to the plaintiffs of the said application of
the 1200/. mortgage money, nor was the consent of the
plaintiff asked to such application, nor were any of the
bills of costs alleged by the defendants to have been paid
with the 1200/. ever taxed.
On the execution of the mortgage the charges for
152Z. lOs, and 69/. IO5. were not given up. Many of
the receipts and payments on account of the property
passed through the hands of the defendants, and were
entered in one general account against T. W. Gibbs
alone.
The charge as to the earlier and draft entries respect-
ing the law business was admitted by the defendants.
Edward Daniel said that when he saw by the call-book
that T. W. Gibbs had been in the office, not knowing
what business he came about, or which of his children to
charge^ he several times entered " Dr. T. W. Gibbs," and
occasionally filled up the charge, and at other times left
it blank to be filled up by the defendant Alfred Cox.
As to the facts more immediately prior to the purchase
the evidence was conflicting.
The bill alleged that in September, 1855, the plaintiff
T. W. Gibbs became embarassed, and was threatened by
his unsecured creditors in respect of debts contracted
for building materials and cfther matters. Among the
creditors were Messrs. Grevile, solicitors, of Bristol.
The bill alleged tliat the defendants knew of his em-
barrassments, having been informed thereof by Messrs^
Grevile j and at a meeting of the creditors some bill of
11
1S62.
Gibbs
V,
Dak I EL.
Statement,
12
l«fi2.
CASKS IX CHANCERY.
cosU was liaudcd in or referred to by them as creditors,
and some proposals were made that the daughters' pro-
perty should be given up, and they should come in as
creditors; but no arrangement Avas come to. T. W.
Statement.
Gibbs also became distressed in mind, and whilst in
this state, shortly befoi'e December, 1855, he and his
daughter, Mary B. Gibbs, at the request of the defend-
ants, had an interview with them, and at this interview
the defendants stated that tlicir clients, the mortgagees,
had frequently written for their interest. That there-
upon Mary B. Gibbs and Ann Gibbs became desirous of
raising a sum of money in order to settle with their
father's creditors. That the defendants offered to lend
them 300/., and to* include the same, together with their
costs and interest, in a further charge upon Amoury
Close, and to wait without interest until such time as the
property could bear it; but this proposal was never
accepted. On the 13th of September, 1855, T. W. Gibbs
was, by the advice of his medical attendant, Mr. Ber-
nard, removed to the country and placed under tlie charge*
of a keeper, and he remained of unsound mind till the
latter end of January, 1856, and it was not until after
April, 1856, that he was able to transact any business.
In the latter end of 1855 or beginning of 1856, Miss
Gibbs was informed by Mr. Grevile that the defendants
had determined on that very day to advertise the mort-
gaged property for sale by auction, which they said they
could do without notice, but that he (Mr. Grevile) hail
iiiduced them to postpone the sale for a week. That no
..written notice was given by the mortgagees, or the de-
• fendants as their solicitors, that they intended to sell. A
further meeting having taken place between the defend-
ants, Mr. Grevile, and Miss Gibbs, the proposition of a
■ purchase by the defendants Avas started by them, and
thereupon the intervention of another solicitor was con-
sidered nccessai'y, and that, at the suggestion of the
CASES IX CHANCERY.
13
defendants, ^Ir. Thomas Crosby, a solicitor of Bristol,
was called in. That an interview took place between
Mr. Crosby and the defendants in a separate room,
at which none of the plaintiffs were present, being
the first interview in relation to this business, Mr.
Crosby not having seen Mary liryant or Ann Gibbs
thereon in reference to any proposal whatever. At this
interview the defendants proposed that if Mary B. Gibbs
would convey to them the mortgaged premises and other
property after mentioned, and Ann (libbs would convey
to them two houses and other property after mentioned,
they would give them 150/. and a clearance. Mr. Crosby
afterwards told the Misses Gibbs tliat the defendants had
intimated to him that unless they immediately accepted
the offer they would instantly advertise the property for
sale. The defendants themselves also urgently pressed
the Misses Gibbs to accept their offer, and from time to
time sent messages to the place where they were residing5
and in particular about the 10th of December, urging
them to give a final answer. That at length the Misses
Gibbs, being distressed and perplexed, and not appearing
to have any other alternative, consented to accept the offer.
That the defendants thereupon prepared the two draft
agreements, which were sent to the office of Mr. Crosby,
who called on the Misses Gibbs and stated they must call
and sign them immediately, or the defendants would put
the property up for sale by auction. That Mary Bryant
Gibbs and Ann Gibbs accordingly signed the papers,
both of which were dated the 8th of January, 1856. By '
one a memorandum of agreement which appeared to
have been prepared in December, 1855, and to have.
been intended to be executed by Ann Gibbs also, and *
made between Mary Bryant Gibbs of the one part, and "
the defendants of the other part, after reciting the title
of Mary Bryant Gibbs to Amoury Close, the grants of the
16th, 17th, and 18th of September, and the mortgages of
1SC2.
GiBBB
V,
Daniel.
Statemmt*
Stotmn^nt.
14 GASES IN CHANCERY.
I8e«^ the 1 9th of September, 1854, and that Mary B. Gibbs
had conveyed to other parties the remaining small portion,
of the value of 60/., of Amoury Close ; also that she was
entitled to three policies for 400/., 200/., and 700/., on the
life of Miss Hounsell, for further securing the said sum
of 1400/. and interest, and that she was also seised of a
messuage called No. 2, Anglesea Place, Durdham Down,
subject to a fee-farm rent of 3/. a year, and to a mortgage
debt of 280/. and interest due to one George Alvis, it
was thereby agreed that on or before the 22nd of January
then next the defendants should pay 75/. to the said Mary
B. Gibbs, and should take upon themselves the payment
of the said mortgage debts and interest, and covenant to
indemnify her from the said debts, interest, ground-rents,
and all covenants, &c. ; and that she, Mary B. Gibbs,
should, on or before the said 22nd of January, and on the
due exercise of such covenant of indemnification, execute
to the defendants, their heirs, executors, administrators,
and assigns, proper conveyances of all her estate and
interest in Amoury Close, except all the remaining portion
aforesaid, and of all her estate and interests in the mes-
suage. No. 2, Anglesea Place, and in the policies of
assurance.
The three policies were in fact never assiorned, having
been surrendered, and the surrender moneys, amounting
to 40/. IOjt. Sd.f received by the defendants on the 26th
of May, 1856.
By the other memorandum of agreement, dated the
8th of January, 1856 (the draft of which appeared to
have been prepared in December, 1855), and made be-
tween Ann Gibbs of the one part, and the defendants of
the other part, reciting that Ann Gibbs was seised of the
two said dwelling-houses, 7 and 8, Wellington Park
Villas, subject to a fee-farm rent of 5/. each, and to the
mortgage debt of 500/., secured by the mortgage of the
26th of January, and an arrear of interest ; and reciting
CASES IN CUANCERY.
the grant of the 18 th of September, 1854; it was agreed
that the defendants should, on or before the 22nd of
January then instant, pay to the said Ann Gibbs the sum
of 75L, and take upon themselves the payment of the
mortgage debt of 500/. and interest, and should execute
a covenant to indemnify the plaintiff Ann Gibbs from
the said debt and interest and ground-rents, and that the
said Ann Gibbs should, on or before the said 22nd of
January and the due execution of the said covenant of
indemnification, execute to the defendants proper con-
veyances of the messuages, 7 and 8, Wellington Park
Villas, and also of the plots of ground contained in the
grant of the 18th of September, 1854.
The defendants, in answer to this part of the case,
alleged that they made repeated applications to Mary B,
Gibbs, through her father T. W. Gibbs, from February
to November, 1855, for payment of interest on the mort-
gages, and that Mr. T. W. Gibbs requested them to
procure 200/. for a short period on the security of houses
in Wellington Park.
That on the 22nd of November T. W. Gibbs expressed
to them the defendants his fear of being arrested by his
creditors, and said he must retire out of their reacht
That it was not until the 22nd of November, 1855, that
they had any knowledge of T. W. Gibbs's embarrass-
ments. That meetings took place between Mr. Giles
Grevile and defendants after this date, but not, to the
beet of their belief, in the presence of Mary B. Gibbs.
That her father was then in Bristol, having hidden him-
self from his creditors. That the defendants believed
that T, W. Gibbs shortly after became unable to transact
business, owing to distress in consequence of his debts ;
but they said he continued in such state for a short
period only, and that he had recovered before the 29th
of January, 1856, after which date he was in a fit state
to transact business; and that he removed from place to
15
1S6S.
OlBM
V,
Daniel.
SiQiemtnU
16
CASES IN CHANCERY,
186-2.
GiBBS
V.
Daniel.
Statement
place, not in consequence of the state of his mind, but
to avoid his creditors.
That the defendants did not offer to lend plaintiffs 300/.,
and include the same in a further charge on Amoury
Close, and to wait for the interest'; but they did proceed
to raise a sum upon the security of the premises in Wel-
lington Park in manner aforesaid. They said that, .their
clients' interest remaining unpaid and unsecured, they
were not willing to wait any longer ; and, after several
interviews with Mr. Crosby relative to the payment of
the interest due to their clients, the proposition for a
purchase was started, but not by them.
The defendants alleged that the intervention of another
solicitor was not necessary, as Mr. Crosby was in fact
acting as solicitor for Mary Bryant Gibbs and Ann Gibbs.
That on the 23rd of November Mr. Crosby called on
defendants, and on that and on the following day had an
interview with him, stating that he had been concerned
for T. W. Gibbs and his family for many years, and re-
quested to be informed of the position of mortgages and
other transactions between the defendants and his clients.
That the defendants told him of the amounts due and
the repeated applications for interest, and requested him
to see if any means could be found to prevent the neces-
sity of a sale, which was inevitable unless this could be
done. After some discussion Mr. Crosby gave it as his
opinion that if 200/. could be found by sale of the equity
of redemption of the mortgaged premises, in order that a
composition might be offered to the creditors, who had
declared their intention of holding the Misses Gibbs
liable for their father's debts, the former might be released
from their difficulties. That Messrs. Grevile were at
one time disposed to accept this offer, but afterwards de-
clined to purchase. That on the 7 th of December Mr.
Crosby proposed to defendants that they should give
150/. for the equity of redemption, and discharge Mary
CASES Ix\ CHANCERY.
17
B. Gibbs and Ann Gibbs from payment of coate, and
also exonerate T. W. Gibbs from liability in respect of a
joint note due from liini and Messrs. Pring & Son to
Mr. John Arnold, a client of defendants, for 100/. That
defendants agreed to this proposal, and volunteered to
abandon their contract in favour of the creditors, pro-
vided payment was made of the interest and other moneys
(exclusive of principal) to defendants' clients, and also
their costs. It was arranged that a decisive answer
should be given on the 11th of December.
That on the 8th of December Miss Gibbs called on
defendants, and told them that she was consulting with
her friends, and she particularly mentioned her uncle,
Mr. James Gibbs, an auctioneer and appraiser, and pro-
mised that defendants should have a decisive answer on
the 11th of December, at twelve o'clock. That on the
llth she called and said that a final answer would be
given at two o'clock, but, not having heard from her, de-
fendants sent to her at the house of her aunt, and were
told they might learn from Mr. Grevile what the answer
was. They therefore sent to Mr. Grevile's office, and
not finding him they sent the following letter : —
1862.
Gibbs
V,
Daniel.
Statement.
" Thomas Crosby, Esq., Solicitor, Bristol.
" Dear Sir, — You will doubtless remember that Miss
Mary Bryant Gibbs undertook positively to give us a
final answer on the propositions submitted to her and her.
firiends at twelve o'clock this day, and we consented to a
further postponement of proceedings, on the part of our
clients, on the faith of his promise. Miss Gibbs has been
to us for information once or twice since, and at twelve
o'clock to-day promised us a final answer at two o'clock.
We have not seen or heard of her, and on sending a
messenger to her aunt's were informed that she was gone
away, and that we might learn from Mr. Grevile what
the answer was. We have sent to Mr. Grevile's office,
VOL. IV. c
18
CASES IN CHANCERY.
1863.
GiBBS
Dam EL.
Statement,
and find him gone away. Under these circumstances we
feel that our consideration for the Misses Gibbs is ill
bestowed, and that we must now simply look to our
clients and ourselves. We remain, dear sir, yours truly,
"Daniel and Cox."
That a few days afterwards Mr. Crosby told defendants
their offer was accepted, and the drafts of the contracts
were prepared. They were perused and approved by
Mr. Crosby, and afterwards executed on the 8th of
January.
The bill alleged that when the deeds of purchase were
engrossed ready for execution, the plaintiffs Mary Bryant
and Ann Gibbs, on the l*Jth of April, 1856, went with
their father, who had. not then recovered his health, and
executed the deeds and received 150/., which was appro-
priated to the payment of some of the plaintiff T. W.
Gibbs's creditors.
That by the first of these deeds, dated the 12th of
April, 1856, and made between Mary B. Gibbs of the
one part and the defendants of the other part, after re-
citing that there was owing to Miss Cox, under the
mortgage, 1200/. and 50/. for interest, and owing to
William Vassall on the mortgage 1400/. and 168/. for in-
terest, and that the defendants, as copartners, had con-
tracted with Mary B. Gibbs for the absolute purchase of
the premises for 100/. ; in consideration of 100/. to Mary
B. Gibbs paid by the defendants, the property called
Amoury Close, and all the hereditaments comprised in
the indenture of the 11th of September, 1854 (except
the sixteen plots granted by the deeds of the 16th, 17th,
and 18 th of September, and a small portion), were con-
veyed to and to the use of the defendants and their heirs,
subject to the two indentures of mortgage.
By a bond of even date the defendants covenanted to
indemnify Mary B. Gibbs against the mortgages of the
19th September, 1854.
CASES IN CHANCERY.
19
By another indenture of the same date^ and made
between Ann Gibbs of the one part and the defendants
of the other part, in consideration of 50L to Ann Gibbs
paid by the defendants, the two plots of ground called
7 and 8 Wellington Park were conveyed to the defend-
ants, their heirs and assigns, the mortgagee^ Ann Yassall,
having been previously paid off by the defendants on the
26th of March, 1856.
By a third indenture of the same date, between the
same parties, for a nominal consideration, the four plots
of ground, known as 2, 3, and 4, Wellesley Place, and
No. 3, Douro Place, were conveyed to the defendants,
their heirs and assigns ; and by a bond of even date the
plaintiff Ann Gibbs was indemnified against Mrs.
Yassail's mortgage of 500/., but not against the ground-
rents, as required by the memorandum of the 8th of
January, 1856.
A letter of even date was handed by Messrs. Daniel 8c
Cox to Mary Bryant and Ann Gibbs, stating that they
the defendants had no claims on them for costs or other-
wise.
The plaintiffs alleged that, until T. W. Gibbs's illness
Mr. Crosby had not acted for them in any matters re-
lating to tlie mortgaged premises, and that at the time of
the purchase he was ignorant of the true value of the
property. No calculation was entered into or reason
given why the sums of 100/. and 50/. were fixed upon,
nor were the valuations either of Mr. Horwood or of
Mr. Pope alluded to. No bills of costs were delivered at
any time, and if any bill of costs was handed in by Mr^
Crosby at the meeting of the creditors, it had not been
delivered to the plaintiffs or any of them. Notwithstanding
the statements about the importunity of the mortgagees
they were still unpaid, and the alleged importunity was a
fiction. The purchase-money of 100/., even with the
alleged further consideration, was very far below the real
P 2
lees.
Gibbs
V.
Daniel.
Statement.
statement.
20 CASES IN CHANCERY.
1862. value, the actual outlay, including the cost of the original
GIBBS leasehold, 495/. ; the renewal, 152/. 10*. ; the reversion,
Daniel. ^^^' ^^^^ ^^^'^ leaving 740/. ; making roads and fences,
200/. ; boundary walls, 90/. ; new road with footpaths and
curbs, 190/. ; erecting eight houses, 1030/. : total, 2897/. 10^.
On the 8th of January and the 12th of April the premises
comprised in the indenture of the latter date were of
much greater value than the mortgage-money and con-
sideration-money put together (2918/.), inasmuch as they
were of the value of 6000/. or thereabouts. The value
of the premises comprised in the indenture of the 12th of
April were of far greater value than 575/., being of the
present value of 800/. or thereabouts. That the defend-
ants were well aware of the true value, and had acquired
the premises at a great undervalue ; that they had sold
parts and received the purchase-money to the amount of
2160/., and ground-rents to the amount of 1020/., and
that the unsold portion was worth about 3000/.
The bill prayed that the three indentures of the 12th
of April, 1856, might be declared invalid, and that re-
conveyances might be executed, and asked for an account.
The defendants' statements as to the proceedings sub-
sequent to the 8th of January, 1856, were as follows: —
That on the 6th of February, 1856, Mr. Charles Harris,
solicitor of Bristol, called upon them on the part of the
creditors, and stated that he had understood from Mr.
Thomas Crosby that defendants had contracted for the
purchase of the property, and that 150/. would be divided
amongst Mr. Gibbs's creditors if they would accept that
sum by way of composition in full of their demands, and
that the defendants were willing to abandon such con-
tracts in favour of the creditors if they wished, on pay-
ment by them of the amount of defendants' claims, and
he requested to know what those terms were, that he
might inform the creditors at an adjourned meeting to
be held next day. At such interview Mr. Crosby in-
CASES IN CHANCERY, 21
formed Mr. Harris verbally of defendants' claims, and 1S62.
those of their clients, and stated that defendants were gibbs
about to write a letter, which they accordingly wrote,
and sent in the words foUowinj^ : —
r.
Daniel.
Statement.
" Bristol, 6th February, I806.
" Thomas Crosby, Esq., solicitor, Bristol.
" Dear Sir, — As the solicitor acting on the part of the
Misses Gibbs, we beg to address you on the subject of
our position with your clients. As they express a desire,
in case their father's creditors should deem it desirable,
to take the property on mortgage to our clients (and
lately contracted to be sold by the Misses Gibbs to us
for loOL over and above all charges and claims by our-
selves and our clients), we beg to state that in case the
creditors are prepared within fourteen days after the
meeting which takes place to-morrow to pay the sum of
707/. 45. 6rf., being the interest, &c., now due, and our
costs attendant on the late negotiation, &c., and will
make arrangements satisfactory to our clients for the
payment of the principal money, that we shall be willing
to abandon our contracts with the Misses Gibbs. As
the result of this matter, there will be due to our clients
as mortgagees of the Misses Gibbs, after payment of the
said sum of 707/. 4*. 6rf., the following sums on these
securities: — The Rev. W. Vassall, on Amoury Close,
1400Z., interest paid to 6th of February, 1856; Miss
M. M. Cox, on Amoury Close, 1200/., interest paid to
15th of January, 1856; Mrs. Vassall, on 7 and 8, Wel-
lington Park Koad, 500/., interest paid to 26th of January,
1856; Mr. George Alvis, 2, Auglesea Place, 280/.,
interest paid to February, 1856. We also mention, that
the creditors may perfectly understand our position, that
900/. is due to our client Mr. Stiffe, as mortgagee of Mr.
T. W. Gibbs, on 1 and 2, Wellington Villas; and also
that if the above money is paid, the creditors will be
22
1862.
GlBBS
V,
Daniel.
Statement,
CASES IN CHANCERY.
entitled to receive the dividend on the debt due to our
client from Mr. Pring, which debt and interest amount
to about 126/. We shall be glad to hear from you what
the creditors determine as soon as possible, and remain,
Dear Sir,
Your truly,
Daniel & Cox."
The defendants said that the contracts with the Misses
Gibbs included the equity of redemption of the premises
described as " 2, Anglesea Place," but defendants gave
up the same at the request of Mary B, Gibbs, through
her father, and after some discussion with Mr. Crosby,
such premises not being of any value over the mortgage-
money and interest Defendants were afterwards in-
formed that the creditors declined to accept their offer
and take the property, and that they had consented to
accept a composition.
They denied the charges in the bill, and alleged that
Mr. Crosby had acted in a great many matters for the
plaintiffs and their family, and that after several con-
ferences between the Misses Gibbs and their relatives
150/. was fixed upon as a fair price for the premises.
They denied having represented the mortgagees as im-
portunate, and said they only stated that the interest
must be paid. A great part of Miss Cox's mortgage
debt was still due, and Wm. Vassall's debt had been trans*
ferred. They denied that 150/. was at all below the
value of the premises at the time of the purchase. They
further said that the property had decreased in value
since Messrs. Pope's valuation in consequence of the
Russian war.
The plaintiffs by their amended bill further alleged
that the offer contained in the letter of the 6th of Feb-
ruary, 1856, was so clogged with conditions that it was
CASES IN CHANCERY.
23
impossible for it to be accepted in such terms. The
approval of Mr. Crosby to the deeds of contract and
conreyances, If given, was merely to see to their being
regular in form. If any bills of costs were handed in by
Mr. Crosby at the meeting of creditors, he had no autho-
rity to examine and no means of examining the accounts.
On the 26th of March, 1856, the defendants issued
circulars stating that they were in a situation to give the
price of the garden part of Amoury Close, which would
be sold under restrictions, &c.
Miss Cox, on the 29th of April, 1856, by a deed of
conveyance of that date, for the nominal consideration of
10^., released to the defendants a small plot of the mort-
gaged premises called Amoury Close. The plaintiffs
alleged that the value of this plot was 1000/., and that
the conveyance expressed that Miss Cox was satisfied
with the residue of the hereditaments comprised in her
mortgage as a security for 1 200/. and interest.
By ten indentures of purchase dated en various days,
from the 27th of May to the 18th of Dt 'ember, 1856,
the defendants sold as many portions of the small plot
comprised in the indenture dated the 29th of Ajml, 1856,
to the purchasers therein named for several sums amount-
ing in the whole to 771/.
In the course of the same year other portions of the
property comprised in Miss Cox's and In William VassalPs
mortgage were sold. On the 30th of November part of
the property comprised in Vassall's mortgage was agreed
to be sold to one Stroud for the sum of 600/. ; and on the
21st of December, 1858, Vassall's mortgage was trans-
ferred.
In their voluntary answer to the amended bill the
defendants set forth a letter, addressed by them to T. W'
Gibbs, on the 19th of November, 1855, in which they
wrote as follows : — '* The business cannot so remain, and.
1802.
GZBBfi
DjiiriKL.
Siatenimt.
24
1802.
GIBB3
V,
Daniel.
Statement,
CASES IN CIIANCEUY.
unless we see you to-morrow we must send to your
(laughters to come to us." They contended that this
letter showed that at that time they treated T. W. Gibbs
as agent for his daughters. They also set forth a letter,
written by T. W. Gibbs to a Mr. Pitt shortly before the
31st of January, 1836, in the postscript to which were
these expressions : — " I think it would have a very good
effect if you were to state in bottom of your circular
calling the meeting that Mr. Gibbs had been insane since
November, but was now getting better." They also said
that since their former answer they had ascertained that
they had prepared and engrossed a further charge, in
favour of Mr. John Alvis, for 200Z,, and they alleged, if the
said Thomas Washer Gibbs had gone on, this matter would
have been concluded. As it was, they alleged that they
paid Mr. John Alvis 5/. on the 26th of April, 1856, as a
compensation for keeping his money unemployed. They
denied that they had put any pressure on the Misses
Gibbs, and said that the latter had the benefit of the
advice of their father, Mrs. Chappell, Mr. Salter another
uncle, and the advice and assistance of Mr. Crosby and
Mr. Pitt. The creditors, after inquiry, thought it un-
advisable to disturb defendants' contract, and resolved to
accept T. W. Gibbs's offer of 4*. 6r/. in the pound.
Nothing was done by the defendants to realise the pro-
perty till after the decision of the creditors, soon after
the 6th of February, 1856.
In a joint affidavit by the plaintiffs. Miss Gibbs verified
the statement as to the meeting between the defendants,
one of the Messrs. Grevile, and herself, and that Mr.
Crosby was sent for by the defendants. She deposed
also that when the defendants' oflPer was communicated to
her by Mr. Crosby she was startled at the proposal,
being quite unprepared for it, and considering that it was
previously settled as to the 300/. She gave Mr. Crosby
no authority to entertain such proposal, and she thought
CASES IN CHANCERY.
25
it premature. She and her sister believed that, from
their father's strange manner, Mr. Crosby was misled as
to the value of the property. The deponents remembered
that Mr. Crosby advised them to go through the Insolvent
Court, and that the defendant Alfred Cox stated that, in
case the property should not realise enough by sale to pay
the mortgages, costs, and incumbrances, they would be
personally liable. This frightened them very much. The
plaintiff T. W. Gibbs said, that in 1852 Mr. Crosby bor-
rowed money of him, and had verbally offered to work it
out in law business, or to that effect ; and it was admitted
he had assisted the plaintiff in his affairs on several sub-
sequent occasions. The Misses Gibbs said that their
reason for going to Mr. Crosby, as suggested, was be-
cause they knew him to be acting in the matter of their
&ther's creditors, and tliey knew of no other course to
adopt. Mr. Crosby had never sent them in any bill of
costs in relation to Amoury Close or Harding's Paddock.
They further said they remembered, in the month of
December, 1855, whilst their father was away and inca-
pacitated, that at an interview w^ith the defendants, in
company with Mr. Grevile, the solicitor for the English
Provident Building Society, Mr. Grevile told the defen-
dants in their presence that the society would give 1000/.
for the garden plot, i.e., the portion of Amoury Close
released from Miss Cox's mortgage. The defendant
Alfred Cox told them that, even if this were done, it w^as
not enough to pay them off. As to the release, T. W.
Gibbs said that in 1854 his son, having had certain
moneys advanced to him, and Pring having lent him, the
said T. W. Gibbs, the trust fund, it was thought prudent
to release Pring so far as his own and his children's per-
sonal claim against him was concerned, the understanding
being that the trust in Amoury Close still subsisted.
Neither of the Misses Gibbs signed at the time, plaintiffs'
object being to delay any final arrangement until matters
180-2.
Sfatetnent,
26
CASES IN CHANCERY.
1862.
GiBBS
V.
Daniel.
Siateftient,
could be placed on a satisfactory footing. No mention
was made in the release of Amoury Close, neither was it
intended that that property should be in any way affected
thereby. The daughters deposed that afterwards, at the
end of 1855 or beginning of 1856, their father being in
an embarrassed and incapacitated state, Mr. Pring became
uneasy as to his position, and they signed the release for
his satisfaction, and without the least intention of com-
promising their rights as to the trust fund.
Mr. Grevile deposed that he was asked by one of the
defendants to peruse a draft which he understood to be a
draft conveyance of the equity of redemption to the
defendants, and which he refused to do, for in the first
place he did not consider himself professionally concerned,
and in the next place he did not like the transaction.
Messrs. Horwood and Wainwright deposed to having
valued the fee simple of Amoury Close in March, 1852,
as building land, at 6000/. ; as it stood in April, 1856, at
6358/.; and as it stood on the 20th March, I860, at
6128/. 6s. Sd.
Messrs. Daniel and Cox, by their affidavit,*[denied
any knowledge of any trust whatever ; they denied that
when Miss Gibbs was informed that if the mortgages
should be deficient she would be personally liable she
appeared frightened or surprised, or that at any interview
as alleged Mr. E. Grevile said that any building society
would give 1000/. for the garden plot : they deposed that
Mr. Grevile's refusal to peruse the draft related to another
matter.
Mr. Crosby, in an affidavit, said he had been solicitor
for T. W. Gibbs for seventeen years and upwards, and for
a number of years for others of the plaintiffs and their
friends. In August, 1852, he made out a bill of costs
against T. W. Gibbs, showing a balance which had never
been paid. T» W. Gibbs was always in his debt. During
Gibbs's difficulties in 1855 he felt willing to act for the
CASES IN CHANCERY.
27
plaintiffs^ though he did not expect to be properly paid for
his services. In November, 1855, he was consulted by
Mary B. Gibbs and Ann Gibbs, and he found from his call-
book that Miss Gibbs called at his office on the 7th, J)th,
13th, and ten other days in November, sixteen days in
December, and seventeen days in January, 1856. He
had interviews with others of Miss Gibbs's relatives and
friends. They all said that the property, if sold, would
not produce the amount due upon it, whereupon ho pro-
posed to plaintiffs to sell the equity of redemption. Mr.
Grevile at once proposed to give 100/. Ultimately the
deponent was unable to prevail on any of the solicitors of
the mortgagees except the defendants to purchase. The
defendants agreed to give 150/. for the equities of re-
demption, and to give a full discharge of all their claims
for costs on the plaintiffs. The sum of 150/. was ac-
cepted by the deponent as the lowest sum which he could
offer to the creditors with any prospect of their accepting
it On the Slst of January, previously to a meeting of
the creditors, deponent received the following letter from
the plaintiff T. W. Gibbs :—
1802.
Statenunt.
*• Mr. Crosby.
" Dear Sir, — Should Mr. Harris, or any one, call on
you about my matters and the property on Down, please
to give no answers at all ; say. Let it be brought on at
the meeting, Thursday, and then you will consult Misses
Gibbs, your clients ; but do not tell them, as things are
strangely altered since I saw you."
That he, Crosby, perused the drafts on behalf of the
jilaintiffs, but did not carefully peruse the bill of costs,
as the plaintiffs were quite satisfied that the property, if
sold, would not have realised the mortgage monies and
interest. Deponent therefore thought any scrutiny of
the costs quite useless. In the year 1853 he was re*
Statement.
28 CASES IN CHANCERY.
1802. quested by T. W. Gibbs to propose the release to Pring ;
GiBBs "o mention was made by T. W. Gibbs that the property
Daniel. '^^ ^^^^ transferred to his children; but he (Crosby)
understood the trust was fully at an end. It was exe-
cuted by T. W. Gibbs and his son on the day of the
date, by Mary B. and Ann, Gibbs (deponent believed)
a few days afterwards, and by Florence E. Gibbs on her
coming of age.
Mr. Pitt deposed that in 1859 T. W. Gibbs told him
he was about to institute this suit. Deponent said he
thought it was most ungracious to attempt it, when he
and his daughters had been so anxious that the property
should be sold at the time. T. W. Gibbs said he did not
mind that, and that he could set the sale aside, for no
lawyers could buy of their clients, and quoted a law case
to that effect, which he said he had read. Deponent said,
" Suppose Daniel and Cox had lost 3000/. by the specula-
tion, would you have lost anything then?" He shrugged
his shoulders and laughed, intimating his dissent.
Mr. Pope, surveyor, deposed that in July, 1854, lie
was instructed by defendants to value the property, on
the assumption that sixteen of the plots had ground-
rents of 41. lOs. each secured on them, and the others 3/.
each. In his valuation he included two cottages which
ought to have been pulled down in order properly to com-
plete the plan for building purposes ; therefore his valua-
tion was too high. He valued the land as building land,
at the rate of between 700/. and 800/. an acre. In the
year 1852 ninety-six new houses were commenced in thg
parish of Clifton, in 1855 only nineteen, and in 1856 only
nineteen. He attributed the depreciation to the great
number of failures by builders, the fear of a long
war with Russia, and the increase in the price of all
materials. At Christmas, 1855, he should not have
valued the property at above 2600/. He could account
for ^Ir. Ilorwood's valuation only on the presumption
V,
Daniel.
Statement.
CASES IN CIIAXCERY. 09
that the whole of the land was at the time sold In parcels, 186*2.
or set out in fee simple, or for ground-rents in perpetuity. gibss
Four other surveyors, Messrs. Gabriel, Sturge, Mar-
mont, and Bessell, valued the property in 1855 nt 2400/.,
2678/., 2424/., and 2400/. respectively.
An immense mass of evidence was put in, the reading
of which occupied the Court several days.
Mr. Malins and Mr. Wyllys Mackeson for the plaintiffs. AYgunient,
— The case made by the bill and established by the evi-
dence was that the defendants, being and having been ft>r
some time the solicitors and confidential advisers of the
plaintiffs, purchased from them their property while under
pressure, and while the professional relation was in full
force. This was of itself enough to vitiate the purchase,
but there were in this case circumstances which placed it
far beyond the ordinary case of a purchase by a solicitor
from his client. It was not necessary that the purchase
should be for an under-value, but here the price given
was not a fifth part of the proved value.
By the terms of the agreement for the sale of the
equity of redemption, the defendants gave the plaintiffs
what they called a clearance for the bill of costs, which
they admitted had never been presented either to the father
or to the daughters. Then, although the original drafts
of bills of costs showed that the costs were owing from the
father, these defendants charged the daughters with them.
[The Vice-Chancellor. — Is there anything about a
clearance in the recitals of the deeds of the contract for
purchase?] There is no mention of a clearance in the deeds
of contract, and no indemnity was given to the defendants
as to the father's debts. Previously to the purchase, the
defendants called a meeting of creditors, with debts
to the amount of 1200/., and offered them the property
at the price at which they were buying it, but so clogged
with conditions that it was obvious they would not accept
30
CASES IN CHANCERY.
Argument.
the offer. Moreover^ it was proved that the defendants
had knowledge of Mr. Horwood's valuation at 6000/. ;
they did not deny that 1000/. had been offered by the
building society for the small plot above mentioned.
They admitted further that they had sold parts of the pro*
perty for 2160/., and ground-rents to the amount of 1020/.,
making together 3180/. ; and they valued the unsold pro-
perty at 3000/. This was almost Mr. Horwood's valuation.
But, even taking Mr. Pope's valuation of 2400/., the
defendants had made a large profit. It was clear, there-
fore, that the sale was at a grossly unequal price.
Again, it was clear that this property was impressed
with a trust within the knowledge of the defendants,
who, in law, must be taken to know what these trusts
were.
Again, it was proved by the evidence that the defend-
ants had alarmed the minds of the Misses Gibbs by
representations that, as owners in fee of the property,
they were liable for their father's debts, and that the
mortgagees were pressing for their money. These state-
ments were both untrue, and ^it was submitted that this
misrepresentation was enough to annul the contract.
But further, the defendant forced the sale on the daugh-
ters in the absence of their natural protector ; while at
the very time when they put this pressure on their foi-mer
clients they had in their hands monies available for pay-
ment of the most pressing claim. Again, though they
provided that Mr. Crosby should be called in for the pro-
tection of their former clients, they the defendants took
care to withhold from him all the material facts relative to
their clients' position, which would have enabled him to
render any assistance to the plaintiffs.
On the principle laid down in all the authorities, this
purchase must be set aside.
In Holman v. Loyne8{a) a purchase by a solicitor was
(a) 4 De G. M. & G. 270.
Argument.
CASES IN CHANCERY. 31
set aside at the instance of the heir-at-law, the defendant 186S.
being unable to show a better price ooukl not be obtained. gibbs
In Ch'eslej/ v. Mousley{a) a purchase by a solicitor was daniel
set aside after the lapse of nearly eighteen years. In
Lawless v. Mansfield{b) a purchase of an annuity by a
solicitor from his client was set aside. Gibson v. Jeyes (f)
was also cited.
Sir H. Caimsy Mr. C, Hall, and Mr. Everitty for the
defendants.
It had been argued on behalf of the plaintiffs that the
property purchased by the defendants was subject to a
trust, and that there had been no actual conveyance from
the real owners. But the alleged transaction by which
Harding's Paddock was bought for 500/. (part of the
1200/. trust-money) conveyed to John Pring(and without
consideration, though one was stated in the assignment)
and let to J. K. Gibbs, the son, was incredible. It was
no less incredible that Pring, having received the ground-
rentSj should have handed them back to Gibbs. This
arrangement was far more consistent with the intention
of securing the property from Gibbs's creditors than of
securing any trust-money to Mr. Pring. Moreover, Mr.
Pring did not venture to swear that the 500/. was [lart of
the trust-fund. Amoury Close was conveyed to Mr-
Pring because Mr. Gibbs had been a bankrupt; there
was a risk that the creditors would interfere with the
property, and Mr. Pring was made a mortgagee merely
for the purpose of raising the money. It was a mere
device to secure the property against Gibbs's creditors.
Mr. Pring next assigned Amoury Close to Mary B.
Gibbs for a nominal consideration, obviously in order to
substitute her for her father. If Mr. Pring had held the
property as trustee, why assign it to Mary B. Gibbs
(a) Ana, vol. I. 450 ; b.c. 4 Pe (b) 1 Dr. & W. 557.
G.& J.78. {c) CVC8.266.
32
CASES IN CHANCERY.
1862.
Argument,
merely to hold as trustee ? This would have been to
incur the expense of the stamp and preparation of the
deed for nothing. It was impossible to reconcile any
part of the transaction with the idea of any trust. If it
was trust-property T. W. Gibbs had a life interest in it,
to which the creditors were entitled. It was alleged to
be worth 6000/. Was a life interest in an estate of 6000/
of no object to the creditors ? Mr. Pitt, in his af&davit,
said Mr. Gibbs told him he wished his daughters to be
treated as creditors, but that he never stated the pro-
perty was held in trust in any way. Mr. Gibbs made a
statement of his own and his daughters' property to his
accountant, for the purpose of inducing the creditors to
accept a composition. Either the property was not his
daughters', as then represented, and Mr. Gibbs stood self-
convicted of having concealed the real ownership for the
purpose of defrauding his creditors, or if in truth the
property was his daughters' he must submit to have the
stigma of untruth cast upon all his evidence in the suit.
Mr. Crosby said the execution of the release was delayed,
as he believed, in consequence of Florence Gibbs being
under age. Mr. Gibbs said that she was at that time
twenty-two years of age ; but Mr. Gibbs did not deny
the important statement made by Mr. Crosby, that the
release to Pring had been prepared on the statement that
all trust was at an end. Then, as to the allegation that
the defendants knew very well that Mary B. Gibbs was
not the beneficial owner — was it consistent with reason to
suppose that they would advance money on what they
knew to be a bad title, and render themselves liable to an
action for doing so ? Upon the title-deeds there was not
a single sentence which would convey notice of the trust.
As to the bills of costs being charged to the father, even
if the allegation were true, the defendants knew that
T. W. Gibbs at least had a life interest, and was there-
fore in any case partly liable for the costs. But the
Anjument,
CASES IX CHANCERY. 33
evidence showed that one partner, Mr, Cox, was in the - 18C2.
habit of attending to the rough day-book, and the other, Giuiia
Mr. Daniel, used to post it up in the evening. Thus the DiNiEL.
mistake, if any, arose. It was alleged that the defendants
changed their line of defence on the 11th of November;
but they uniformly swore that they had no knowledge
of Mr. Gibbs's difficulties till the 22nd of that month.
On the 19th, a few days before this date, they wrote
to Mr. Gibbs, applying for payment of the interest, and
treating him as an agent. William Kintoii Gibbs also
ought to have been a party, inasmuch as after his father's
death he might claim as a party to the trust and re-open
the litigation.
At the time of the contract the defendants were not
the solicitors of the plaintiffs, or of any of them. As
soon as the plaintiffs saw that their solicitors Daniel &
Cox were in the position of solicitors to the mortgagees,
they called in their own solicitor Mr. Crosby, [The
Vice-Chancellor. — Is there any evidence that Messrs.
Daniel & Cox gave notice to the plaintiffs that they were
no longer their solicitors ?] Such a step was not neces-
sary. Miss Gibbs's statement that she was startled at
the proposal for a sale was wholly inconsistent with other
parts of her evidence. There was evidence to show that
the daughters had ample time to consult with their friends.
Even after the defendants' notice had expired no step
was taken for three or four months. Mr. Crosby himself
said he was sent for by the plaintiffs and not by the de-
fendants. From the 7 th of November the Misses Gibbs
were in almost daily communication with him. [The
Vice-Chancellor. — Does Mr. Crosby mean he took
any steps to ascertain the value of the property ?] No,
but the defendants could not be held liable for what Mr.
Crosby failed to do. [The Vice-Ciiancellor. — The
law of the Court is, that it is the duty of the old solicitors
to see that the new solicitor does his duty : at least they
VOL. IV. D
Argument,
34 CASES IN CHANCERY.
isCes. • must take the consequences of his neglect.] Mr. Crosby
GiBBs showed that it was not till after efforts had been made to
Daniel, induce Mrs. Chappell and others to buy the property
that he, at the suggestion of Miss Gibbs, applied to the
defendants to have the contracts drawn up.
The fact that the creditors refused to purchase ought
to have relieved the defendants from all unjust suspicion.
What was the case of the plaintiffs ? That they told the
creditors that the property would not produce more than
4s. 6d. in the £. They now said that what they ought
to have given was I5s. in the £. Having got rid of the
creditors, they now turned round to the purchasers, and
complained of the property having been sold at an under-
value ; and came to a court of equity to assist them to
recover it. The evidence showed that Mr. Gibbs's com-
petency to manage his affairs was fully restored in
January, 1856. The only foundation for the charge that
the defendants' statement respecting their clients' pressure
was false, was the defendants' own statement in their
answer that their clients had left the conduct of the
mortgages wholly in their hands. As to 1000/. having
been offered for the garden plot, the evidence did not go
beyond this, that the owners asked that sum, and there-
upon the affair was broken off. As to Miss Cox's release,
the fact was — that she received 5007. in consideration for
that release. As to Alvis's mortgage, the plaintiffs
themselves alleged that the proposal fell to the ground,
for a reason they assigned. As to the question of value,
it was contended that information on this point could not
be said to have been withheld, inasmuch as the defendants
were no longer in the relation of solicitors. Messrs.
Horwood distinctly stated their reason for valuing the
property at the sum of 6000/., viz., because they con-
sidered it good for building purposes. It was not till
after the proclamation of peace with Russia that such
property began to improve. The second valuation was
CASES IN CHANCERY.
35
made upon representations only ; the third for the pur-
poses of this suit. On the other hand, there was the
valuation of Messrs. Pope, the district surveyors of Bris-
tol, gentlemen perfectly qualified to give a good and im-
partial estimate. It was, moreover, supported by other
independent estimates. Again, the defendants undertook
to give a complete clearance in respect of costs. The
transaction was perfectly fair and honest, and such as this
Court would support
It was quite true that the defendants had been the
plaintiffs' solicitors, but they had ceased to be so at the
time of these transactions. If an attorney is not acting
for a client in a particular matter, he may throw off that
character and exercise his independent rights: Austin v.
Chambers (a). To vitiate the transaction the relation
must be in h&c re: Edwards v. Meyrick{b), Again, the
mere fact of an increase in the value of the property
from adventitious circumstances, which the client has the
same means of knowing as the solicitor, cannot be taken
into account on a question as to the validity of the sale.
It was submitted, therefore, that the bill ought to be
dismissed with costs.
1S62.
OIBB8
Danibl.
Argument,
Mr. Cox, one of the defendants, was tendered by the
defendants as a witness, and, on cross-examination by
Mr. Malins, he produced his books, and admitted that
there were two entries dated respectively July and
November, 1855. The former of these was an entry in
the credit account of a gentleman named Alvis, in the
following terms:— "Advanced for Gibbs 150/." The
second was as follows : — " Advanced for Gibbs 50Z."
Mr. Malins was heard in reply, when his Honour re-
served judgment.
(a) 6 CI. & Fin. 1. (b) 2 Hare, 60.
P 2
36
CASES IN CHANCERY.
1802.
GiBBS
V,
liANIEL.
Judgment,
The Vice-Chancellor : —
The object of this suit is to set aside a purchase by
the defendants of the equity of redemption of certain
property of the plaintiffs. It appears that the defend-
ants had acted as the solicitors of the plaintiffs and also
of the mortgagees. It is a material part of the defend-
ants' case that about twenty-one days before the agree-
ment for the purchase they had ceased to act as solicitors
for the plaintiffs*, and that another solicitor was called in,
who acted in their behalf and sanctioned the purchase.
There is no doubt that the intervention of other ade-
quate assistance and advice, so as to remove all that pre-
sumption of pressure and influence which arises from the
relation of solicitor and client, may give validity to the
transaction of a purchase by a solicitor from his client.
In the present case there is this peculiarity, that there is
the clearest evidence of actual pressure by the defendants
themselves, and the question is not to be dealt with on
the mere presumption of influence or pressure. What
the defendants have laboured to show is that the affairs
of the plaintiffs were in a state of embarrassment and
difficulty, which made the sale inevitable; that before
the contract another solicitor was called in and acted for
the plaintiffs ; that an adequate price was paid ; and that,
even after the contract was made, the defendants, so far
from being eager in the transaction, were desirous of
inducing any person to take the pui'chase off their hands,
and actually offered it to the plaintiffs' creditors, who
refused to take it. There is a great deal of evidence on
both sides on these grounds of defence. When fairly
weighed the evidence does not remove the difficulties in
the defendants' case.
As to the intervention of Crosby, who was the per-
son called in to act and to succeed the defendants as
solicitor for the plaintiffs, its importance must depend
CASES IN CHANCERY.
37
on the way in which lie performed his duty. He has
been examined as a witness on behalf of the defend-
antSj but it does not appear that he had sufficient infor-
mation as to the state of the plaintiffs' affairs^ or the
circumstances or value of the property, to make his in-
tervention or approbation of the sale of much value. He
made no adequate exertion and took no proper pains to
inquire into and ascertain the value of the property,
and made no attempt to procure any other person to
purchase.
The pretext for the sale was the pressure of the mort-
gagees, who were the defendant*' clients, and whose
interest was in arrear. If Crosby had made proper
inquiry of the defendants, and they had told him the
truth, he would have ascertained that they had in their
hands a sum of money advanced to them for the purpose
of being lent to the plaintiffs, which, if the defendants
had chosen, would have relieved the pretended pressure,
and he might also have discovered that the mortgagees
had not instructed the defendants to threaten to sell the
property.
The proposal of the defendants to become purchasers
appears to have been contemporaneous with their
ceasing to act themselves as solicitors for the plain-
tiffs and with the employment of Crosby. In the answer
(paragraph 35) the 23rd of November, 1855, is fixed as
the date on which they ceased to act as solicitors for the
plaintiffs, and on which Crosby appeared. On the fol-
lowing day there occurred an interview between the
defendants and Crosby, the particulars of which are
stated in the answer. They say that Mr. Crosby re-
quested to be informed of the state of the mortgage and
other transactions between them and his clients; that
they gave him such information, and among other things
they stated the impossibility of their clients remaining
any longer unpaid, and requested him to see if any means
1862.
Judgment,
38
CASES IN CHANCERY.
1862.
Judgment.
could be found to pay the interest and prevent the neces-
sity of a sale, which they said was inevitable unless this
could be done. The proposition that the defendants
should become purchasers was, they say, started by
Crosby. In a previous passage they say tJiat the propo-
sition was started after several interviews with Crosby.
Upon that proposition they offered to purchase, and in
paragraph 37 is this passage: — "We admit that we
had intimated to him that unless the plaintiffs Mary
Bryant Gibbs and Ann Gibbs, on or before the 11th day
of December, but not otherwise, immediately accepted
our offer, we would instantly advertise the property for
sale."
It appears, however, that all this urgency and all
these threats proceeded entirely from the defendants
themselves, and had no foundation in any instructions or
wish of their clients, the mortgagees. This is clearly
established by their own evidence. They admit that no
written notice was given to any of them by the mort-
gagees to sell, that the mortgagees left the entire manage-
ment of the mortgage securities in their hands, and that
the statement that they would proceed instantly to ad-
vertise the property for sale was made solely because no
means could be found whereby the interest due on the
mortgages could be paid or secured. This last statement
has been displaced by documentary evidence and by the
vivd voce examination of the defendant Cox as to the
moneys in the defendants' hands, received by them in
respect of a loan negotiated in July for the plaintiffs, and
left uncompleted for some reason incompatible with their
duty to the plaintiffs, then their clients.
It is thus clearly proved that, while the non-payment
of interest was the pretext for compelling an instant sale,
tliey had in their hands moneys which their duty to the
plaintiffs as their clients required them to make available
for that purpose. When Crosby was called in to act in
CASES IN CHANCERY.
their stead as the plaintiffs' confidential adviser^ they
withheld from him the knowledge of this and other facts
essential to enable him to discharge his duty with effect.
Where a purchase of this kind is defended on the ground
of the intervention of other professional assistance, it
must be shown that the new adviser had a proper oppor-
tunity of discharging his duty.
If it appears that the solicitor purchasing from his late
client is aware of a neglect of duty^ or takes advantage
of any neglect of duty, in the new adviser, but especially
if he withholds or suppresses from the new adviser any
information of importance, the transaction is vitiated.
The intervention of one who is seen or known to neglect
his duty is no protection.
In the present case the defendants used for their
own benefit against their former client's information
obtained by them while acting as their professional ad-
visers. The defendants are shown to be purchasers
of the property of their late clients, under a forced
sale, forced under a pressure created by themselves.
They only ceased to act as solicitors for the plain-
tiffs at the time when they offered to purchase their
estate, and they continued the pressure under a power
which they themselves created till they completed the
purchase, and they completed at the time when they had
secured to themselves a large profit from a transaction
of which the negotiation was commenced while their
confidential relation with the plaintiffs existed, and con-
cluded, not for the benefit of the plaintiffs, but of them-
selves.
Throughout the transaction the plaintiffs were placed
wholly at the mercy of the defendants. The threats
and pressure and alarm were all the work of the
defendants, and the means by which they procured the
plaintiffs to make the contract. Except for the purpose
of procuring a sale to themselves, there appears to be
39
186S.
GiBBS
V.
Daniel.
Judffment,
40
CASES IN CHAKCERY.
1862.
GiBBS
V.
Daniel.
Judgment,
no reason at all for their assertion that a sale was in-
evitable, and no other reason why they threatened that
they would instantly advertise the property for sale unless
their offer to purchase was accepted.
The profits which the defendants have derived from
their subsequent dealing with the property is the best
proof of value. Evidence of a great depreciation of
the property from temporary causes at the time of the
contract affords little assistance to the defendants' case.
A purchase of mortgaged property by the solicitor of
the mortgagee at a time of temporary depreciation of
the property without any instructions from the mortga-
gee, or any purpose of apparent benefit, to him can
scarcely be a valid transaction.
Objections have been taken as to the state of the
plaintiffs' title to the property, but these objections
are of no material importance on the main question
in the cause. It sufficiently appears that the trust
funds in which all the plaintiffs were interested had
been irregularly dealt with as to the investments in
the property in question ; but the nature of the dealing
was such as to give to all the plaintiffs such an interest
in the property as entitles them to maintain the suit.
The objection that the son is not a party to the suit is
of no avail. It does not appear that he could properly
have joined as a plaintiff, and it is not shown that he
retains any interest in the property sufficient to make his
absence as i)laintiff or defendant in this suit an obstacle
to tlie plaintiffs' right to relief. He was no party to the
contract and conveyance which are sought to be set aside.
It is scarcely necessary to notice that what is said by the
defendants to have been an offer by them to the creditors
of the contract was an offer of a different kind, including
other property and on other terms. It is sufficiently
proved that the defendants before their purchase were
well aware that there was an opportunity of selling a
Judgment,
CASES IN CUANCERr. 41
small portion of the ground for a large «uin, and they so 16C2
managed as to prevent the plaintiffs from having the
benefit of -this advantageous proposal^ and reserved that
benefit to themselves.
Throughout the whole of the transaction the conduct
of the defendants was a series of pretexts. The urgency
of the mortgagees was a pretext; the insufficiency of the
security was a pretext; the threat of advertising the
property for immediate sale at the instance of the mort-
gagees was a pretext ; and all these pretexts were used
before their confidential relation with the plaintiffs was
dissolved.
Upon the whole case the plaintiffs have established a
right to set aside the transaction, and to have a decree
against the defendants with costs.
The decree was enrolled, and the defendants gave notice of appeal
to the House of Lords ; the costs were, however taxed, but before
payment the defendants served on the plaintiffs the following; notice : —
"Take notice that this Honourable Court will be moved, before his
Honour the Vice-Chancellor Sir John Stuart, on the 23rd day of
April instant, or so soon after as counsel can be heard on behalf of the
defendants, that all proceedings in this cause under the decree made
in this cause by his Honour the yice-Chancellor Sir John Stuart, and
dated the 3rd day of May, 18C2, may be stayed pending the appeal
presented by the said defendants to the Lords Spiritual and Temporal
in Parliament assembled, or that all proceedings under the said decree
as regards the enforcing the payment of the costs of the suit by the
said decree directed to be taxed and paid, may be stayed pending the
said appeal ; or that his Honour may be pleased to make such further
or other orders as he shall think lit.
" Dated this 20th day of April, 18C3."
The Vice-Chancellor refused the motion with costs ; but on appeal,
heard on the 1st May, 1863, the Lords Justices made the following
order . —
*' Payment of the costs to the solicitor ordered upon personal security
being given to return same if ordered, or upon an undertaking
42
CASES IN CHANCERY.
1862.
GiBBS
V.
Daniel.
Judgment,
bein^ given by the solicitor to abide by such order as the Lords
Justices mii}'^ make after the appeal is decided in the House of Lords ;
if no security or undertaking" g'iven, payment into court. Order of
Vice-Chancellor as to costs of the motion before him to 6tand. Re-
serve costs of the appeal."
SAMUDA V. LAWFORD.
Where a lessor
agreed to let a
house and to
put it in deco-
i*ative repair,
but refused to
fulfil his con-
tract, the
Court at the
instance of the
lessee decreed
specific per-
formance of
the agree-
ment, with an
inquiry
whether the
agreement as
to decorative
repair had
been per-
formed; and
if not, decreed
that the
defendant
should com-
pensate the
plaintiff* in
damages.
I
N February, 1862, the plaintiff entered into negotia*
tions with the defendants J. E. Lawford and Caroline
Kelly, in respect to a dwelling-house and the appur-
tenances, situate in Dartmouth Park Koad, numbered 3.
The arrangement was, that the plaintiff should take the
house for a period of three years from the 25th of March,
1862, at the yearly rent of 50/., but the plaintiflf before
concluding the contract required that certain specific
alterations and repairs should be first done. William
Lawford, a connection of the defendant J. E. Lawford,
and who acted as defendant's agent, sent to the plaintifl'
a printed form of agreement for the letting of a house
filled up, but the plaintiff, being dissatisfied with such
printed form, altered it to meet his views of what he was
entitled to, and returned it to William Lawford on the
21st of February, 1862, with the following remarks: —
" I have made such alterations in the inclosed form as
will, I believe, make it embody our reciprocal stipulations
and carry out the understanding between us. The agree-
ment might, no doubt, be much shortened, but I thought
you would prefer retaining as much as possible of the
printed form. It would have swollen tlie document to
statement.
CASES IN CHANGEBT. 43
an unreasonable length to detail the particular matters J^^
agreed upon as between ud^ to be attended to in the house,
which for exactness sake I recapitulate liere." Tlie
plaintiff then specified several things which he required
to be done« and proceeded thus: — "I mention these
matters as having already engaged our attention, but, of
course^ if any other trifling defects which may have
escaped our cursory survey the other day should exist,
Mr. J. E. Lawford will remedy them ; and now I think
of it, it seems to me that the paper in the passage is torn
or defaced in several places."
On the 25th of February, 1862, the defendant J. E.
Lawford, in a letter of that date addressed to the plaintiff,
made the following observation : —
" I presume the rain-water cistern will be sufficiently
large if it hold sixty or seventy gallons. The paper will
be repaired as requested, and all other matters to meet
your requests in your letter of the 21st."
By an agreement dated the 25th of February, 1862,
and made between the defendants of the one part and
the plaintiff of the other part, the defendants agreed
to let^ and the plaintiff agreed to take, the said mes-
suage or tenement the premises, with the appurtenances,
for the period of three years, &c. And it was among
other things agreed, that on the expiration or deter-
mination of the tenancy the plaintiff would quietly
deliver up the messuage or" tenement, &c., to the
defendants or their agents acting in their behalf, in as
good repair and condition as the same then were in,
reasonable wear excepted; the defendants nevertheless
putting the premises in substantial and decorative repair,
and keeping the same so during the term thereby created.
After the execution of the agreement the plaintiff
entered into occu4)ation of the premises, wliich he still
retained. The bill, which was filed on the 12th of May,
1862, alleged that he entered into possession in the full
V.
Lawpord.
statement.
44 CASES IN CHANCERY.
1862. expectation and belief that the premises would be put
Samuda in complete, substantial, and decorative repair, and that
the additions and repairs required by the plaintiff and
specified in his letter of the 2 1st of February, 1862, and
agreed to be made and done by the defendants, would be
made and done by them in accordance with the agree-
ment and the letter of the defendant Lawford of the 25 th
of February, 1862. He insisted that the defendants
were bound to make such additions and do such repairs,
and that divers other repairs were required to the premises,
to the paint and paper in various parts of the premises,
the cielings in various rooms and passages to be made
good, handles and keys to certain doors, that the gratings
to the drains throughout the outer part of the pre-
mises, bell-wires and iron work to the gates, required
to be renewed ; and he submitted he was subjected to
considerable inconvenience and injury, and was deprived
of the reasonable and beneficial use, occupation, and
enjoyment of the house and premises in consequence of
such additions not having been made, and of such repairs
not having been done.
The bill prayed that the defendant might be decreed
specifically to perform the agreement of the 25th of
February, 1862, and to put and keep tlie premises into
substantial and decorative repair, and in particular to
make the additions and do the repairs specified in and
required by the plaintiff's letter of the 21st of February,
1862, including the repairs referred to in the 6th para-
graph of the bill, and that damages might be awarded to
the plaintiff in respect of the breach and noni>erformance
of the agreement by the defendants, and in respect of
the refusal of the defendants to make such additions and
do such repairs to the premises.
The defendant J. E. Lawford, by l«s aflSdavit, dei)osed
that the material portion of the re2)airs agreed to be done
by him were done, and that he always was ready and
CASES IX CHANCERY.
45
1802.
Sahuda
V.
Law FORD.
Statement,
willing to do the repairs not already done, wliicli, how-
ever, were so trivial that the plaintiff could not possibly
have sustained an injury, inasmuch as the whole of them
could be completed for less than the sum of 3/.
In reply an affidavit was made on behalf of the plain-
tiff by a builder, &c., that he had carefully inspected the
house and premises, and the repairs which still remained
undone would, in his opinion, cost the sum of 15/. or
thereabouts.
Mr. Bovilly for the plaintiff, contended that the plaintiff Argument,
was entitled to a decree for specific performance of the
agreement on the faith of which the plaintiff had entered
into possession of the h6use. It was submitted that
under its improved jurisdiction the Court had power to
compensate the plaintiff for the damage he had sustained
by reason of the defendant's neglect to fulfil his contract.
Mr. Shebbearey for the defendant, contended that the
plaintifiT might have obtained at law the full benefit of
the agreement ; and if so, the bill ought to be dismissed :
Clayton v. IlUngworth (^d). In Taylor v. Partington (Ji) it
was held that an agreement to take a lease of a house if
put into thorough repair and the drawing-room hand-
somely decorated according to the present style was
too uncertain for the Court to enforce. In Norris v.
Jackson (c) it was held on demurrer that a repairing
contract was too vague to be enforced (rf). In Brace v.
Wehnertijs) an agreement to grant a lease of a house
when built according to a pUn to be approved of (no plan
having been approved) was held too vague, and the bill
was dismissed with costs.
The Vice-Chancellor. — The stipulations in the
agreement are not conditional. The agreement is, to put
(a) 10 Hare 451. (d) See Anth (Giff.), vol. iii.
(h) 7 De G. M. & G. 328. p. 396.
(<?) 1 John. & H. 319. {e) 26 Beav. 348.
Judgment.
46
CASES IN CHANCERY.
1862.
Judgment,
the premises In substantial and decorative repair, and it
is sufficiently definite for the Court to execute. The
case of Taylor v. Portington was a very peculiar one, but
the language of the agreement in that case was very
different from that in the present. In addition to the
power of the Court to decree specific performance, the
Legislature has said that the Court may award damages.
The duty of the Court Is to decree specific performance,
and to direct an inquiry whether the agreement as to
decorative repairs has been performed; and if not, to
award damages, The defendants must pay all the costs.
July 15.
The 10th sec-
tion of the
Railwny
Clauses Con-
aolidation Act
authorises the
permanent
diversion of
public roads,
and not only
a temporary
diversion for
the purjjosc of
constructing
the railway ;
and the Court
dismissed a
bill filed for
an injunction
to restrain
such
diversion.
PHILLTPPS V. THE LONDON, BRIGHTON,
AND SOUTH COAST RAILWAY COM-
PANY.
1 HIS bill was filed by George Phillipps, the owner of
Streatham Park, in the parish of Streatham, in the
county of Surrey, for the purpose of obtaining an in-
junction restraining tlie London, Brighton, and South
Coast Railway Company from diverting the road called
the Mitcham Road, or any part thereof, save for such
temporary purpose as was autliorised by their Act of
Parliament, and also from leaving a cutting in Mitcham
Lane uncovered by a bridge for a longer period than
should be necessary for building a bridge for carrying a
road over the railway at Mitcham Road, in accordance
with the deposited plans and their Act of Parliament/
and from blocking up the Mitcham Road, or any part
CASES IN CHANCERY,
thereof, and from making fences on the said road, except
for the purposes of forming the railway and building the
bridge for carrying the said Mitcham lload over the rail-
way, in accordance with their Act.
The bill further prayed that the damage done to the
plaintiff by diverting the said road in manner aforesaid,
might be ascertained under the direction of the Court,
and that the company might be decreed to make good
the amount to the plaintiff.
Streatham Park was bounded on the southern side by
the Mitcham Road, having a frontage to the said road
very valuable for building purposes. The bill alleged
that in the session of Parliament of 1859 and 1860 the
railway company brought in a bill to authorise the con-
struction of a line of railway from the London, Brighton,
and South Coast Railway, in the parish of Croydon, to
the West End of London and Crystal Palace Railway, in
the parish of Streatham, and that the proposed line would
intersect Streatham Park, and divide Mitcham Road.
The bill alleged that the company, in order to prevent
the plaintifTs opposition, entered into an agreement with
him whereby they agreed to buy about three acres of
freehold land for 3200/., and about six acres of copyhold
land at the rate of 200/. per acre, "which said sums were
to include all damage for severance or otherwise."
The bill alleged that, according to the plans deposited
by the railway company, the line of railway would cut
the Mitcham Road at right angles, by a deep cutting in
Mitcham Lane ; that the company were bound to erect a
bridge to carry the road over the railway so as to unite
the portions of the Mitcham Road as directed by the
Railway Clauses Consolidation Act, 1845 ; and that the
company had no power to divert the road for other than
certain temporary purposes mentioned in the said Act.
The bill alleged that shortly before the 20th of January,
1862, the company determined, instead of building a bridge
47
1662.
Phillips
17.
The London,
Brighton,
AND South
Coast
Railway
Company.
Statement,
48
CASES IN CHANCERY.
1862.
f*HILLIPg
The London,
BRiaHTON,
AND South
Coast
Railway
Company.
Statement.
according to the deposited plan for the purpose of carrying
the road over the railway, to divert the road itself; and
accordingly they commenced works for the purpose of
diverting the Mitcham Koad for a distance of 600 feet,
beginning about 500 feet to the eastward of the intended
cutting, and terminating about 100 feet to the westward
of tlie same,' whereby the road would no longer form the
boundary of the Streatham Park Estate, and there would
be interposed a piece of land between the Streatham
Park Estate and the new road. The pldntiff would thus
be deprived of his frontage to the road which formed the
boundary to the Streatham Park Estate.
The bill was filed on the 6th of May, 1862. It ap-
peared in the evidence that on the 20th of January the
plaintifPs solicitor wrote to the company's solicitors,
stating that, for the injury thus Sone to Mr. Phillipps, he
might justly require compensation, or he might insist on
the company forming the railway in strict conformity w^ith
their deposited plan. He was not, however, desirous of
doing either of these things, but would be satisfied if
the full right in perpetuity to the abandoned portion of
the road were made over to him by the company, and
which, as it could be of no value to the company, it was
presumed they could have no hesitation in doing.
On the 27th the plaintiff's solicitor again wrote to the
defendant-s' solicitors, saying, that what Mr. Phillipps
required to be given was all the land that would be left
between the park and the newly-formed road. On the
19th of March the plaintiff's solicitor wrote again, as-
serting that the company had no right to divert the road,
and threatened i)roceedings unless some equitable arrange-
ment could be come to : other claims were also made.
On the 20th of March the company, by their solicitors,
wrote, denying that the company had no right to divert
the Mitcham Lane Road as they were doing, though they
admitted that when the road was diverted it might become
CASES IN CHANCERY.
a question whether Mr. Phillips was entitled to any com-
pensation for injury done to his property by such diver-
sion, and they felt sure the company would meet any
claim in a liberal spirit. The agreement, however, stipu-
lated that the money paid to Mr. Phillips was to include
all damage by severance or otherwise.
On the 5th of May the company's solicitors wrote as
follows : —
49
I8G-i.
Phillips
r.
TiirLoj;don,
Brighton,
AND South
Coast
Railway
Company,
Statement.
" With reference to the proposal made by you some
time ago that the company should give to Mr. Phillips
the strip of land between the diverted road in Mitcham
Lane and his park fence, we are now in a position to
propose this to the board, and we will do so if your client
still desires to have the land. We should say that the
board would meet his wishes."
On the next day the plaintiff's solicitor wrote to the
company's solicitors stating that a bill was ready to be
filed, and the plaintiff was not then inclined to come to
such favourable terms as he would have been willing to
accept at the beginning of the correspondance, being
advised that the company were liable to him in damages
for the deterioration which their proceedings had caused.
At the same time he should be glad if terms could be
come to to stop litigation, and with that view tlie plain-
tiff's surveyor would wait upon the defendant's solicitors
in the course of the day.
On the same day the latter wrote to say that the com-
pany's engineer made no objection to the strip of land
being given up to the plaintiff. They should therefore
advise the board that it be given up. They had much
pleasure in acceding to the request, and would advise the
board it ought to be given up.
On the 6th of May the bill was filed, and on the fol-
lowing day the company's solicitors wrote to the solicitor
VOL. IV. E
50 CASES IN CHANCERY.
1863. of the plaintiff repeating the offer as to the land, but
Phillips observing that the plaintiff must not do anything to
Thb iXndon ^^J^^® ^'^® embankments or roads. They said that, having
Brighton, offered the plaintiff all he asked, they could not conceive
AND South
Coast why he preferred to file a bill. They added, that if the
plaintiff declined the offer and put the company to ex-
penses, they must stand on their strict rights.
Argument. Mr. Greene and Mr. Martindale, for the plaintiff, con-
tended that by the 16th section of the Eailway Clauses
Consolidation Act, 8 & 9 Vic, c. 20, the company were
only authorised to make a temporary diversion for the
purposes of their railway, and were not authorised to
make a permanent diversion of roads not In conformity
with the deposited plan,
Mr. Malins and Mr. Dickinson contended that the 16th
section of the Act empowered the company to make a
permanent diversion of roads, if necessary for the con-
struction of the line.
Mr. Greene was heard in reply.
Judgment. The ViCE-ChANCELLOR : —
It is plain that the plaintiff has sustained very serious
damage, for which he is apparently entitled to have a
proper reparation made. The real question is as to the
jurisdiction of the Court to grant an injunction upon the
ground that a public road has been improperly diverted.
The bill prays for an injunction to restrain the defendants
" from diverting the said road, called the Mitcham Road,
or any part thereof, in manner aforesaid, or in any manner
save for such temporary purpose as is authorised by the
said Act of Parliament;" and "from leaving the said
cutting in the said Mitcham Lane uncovered by a bridge
for any longer period than shall be necessary for building
CASES IN CHANCEBT.
a bridge for canying the road oyer the said railway at
the Mitcham Boad^ in accordance with the deposited
plans and the Act of Parliament." The right to an in-
junction must depend on the plaintiff being able to show
that what the defendants have done is something ex-
ceeding the powers conferred upon them by the Legisla-
ture. After reading the clauses of the Railway Clauses
Consolidation Act, I have no doubt that the company
were authorised to divert a public road ; and if that be
eo, the Court has no power to grant the injunction ; and
if the CJourt has no power to do that, the plaintiff's case
must faili and the bill be dismissed. But, as to the costs,
this litigation has been carried on in a manner not at all
creditable to either party, and the bill will therefore be
dismissed without costs.
51
isas.
Phillips
V.
The Londov,
Brighton,
AND South
Coast
Railway
Company.
Judgment,
WETHERELL v. WETHERELL.
July 21 $• 22.
W ILLIAM DE C AULIER made a holograph will, tator directed
dated the 13th of September, 1855, which, as admitted {ntewTof hte
to probate, was as follows : — This is the will and testa- ^!i^"? Y^}^
, , . divided Into as
ment of William de Caulier, resident at No. 3, Terrace, many shares
New Norfolk Street, Islington, in the county of Middle- uving chil-
dren of T. and
L. W., share and share alike, as they should come of age ', and in case any one should die
without children, his share to devolve on survivors successively, till the whole interest
came into the hands of the grandchildren and great grandchildren of T. and L. W.^Ueld,
that the children of T. W. living at his death were entitled to the income only, hut that
there was a gift by implication to these children absolutely, with a gift over of the share of
any grandchild who had died without having had issue ; not absolutely, but according to
the ^ft of the original share.
Where a testator, having granted an annuity to his widow, under his will directed that if she
I>er8isted in any claim on the residue of his property she was to forfeit the annuity — Held
the widow was not put toher election, but was entitled both to her dower and to the annuity
E 2
statement.
52 CASES IN CHANCERY
18^' sex. As It may please the Almighty God to remove me
Wethbrell iVom this present state at any time He himself may judge
Wetiierbll. ^ost fit, I therefore write out the following declaration
as my will and testament. After all my just debts and
funeral expenses, and the various legacies, donations, &c.,
herein specified are fully paid and settled with all the
parties concerned therein, my will is, that the annual
interest only of all the residue of my property, of what-
soever kind or wheresoever placed, shall be divided into
as many equal parts or shares as there may be children
living and begotten of the body of Thomas Nathaniel
Wetherell, surgeon, at Highgate, in the county of Mid-
dlesex, on the body of his present wife Louisa Wetherell,
share and share alike, as each of the said children come
of age. And, in case any one of the said children shall
die without any children of their own lawfully begotten,
then in that case his or her share of the said annual inte-
rest (as the case may be) shall devolve to the surviving
children, share and share alike, and so on successively
until the whole amount, of the said interest of the said
residue comes into the hands of the grandchildren and
great grandchildren of the above said Thomas Nathaniel
Wetherell and of his wife Louisa Wetherell. As to
Phoebe de Caulier, to whom I was formerly married, as
she has by inheritance on her mother's side a sufiScient
sum to live upon, I will and bequeath to her (upon con-
dition of her making no claim whatever upon the residue
of my property) I will and bequeath to her the usual
annuity of 28?., t.e. twenty-eight pounds sterling, to be
paid to her by my executors half-yearly, on demand,
during her lifetime only ; after her decease the principal
thereof will become part of the residue of my property ;
but if the said Phoebe de Caulier makes and persists in
any claim upon the residue of my property after my
decease, I will and bequeath unto her no part of my
property, and the said annuity of 28/. sterling shall not
CASES IN CHANCERY. 53
be paid. And my wUl is that all casual property re- 1862.
verting to my estate, whether of leasehold or of copyhold Wbthbkell
property, mortgages, policies of life assurance, ground- wethkkbll.
rents, &c., that shall fall in, or be advisable to call in, —
shall, as soon as the amount thereof is obtained, be imme-
diately invested in the best Government securities, the
interest thereof to be received for and on behalf of the
aforesaid children of the said Thomas Nathaniel Wetherell
and Louisa Wetherell, his wife. And I do will and
bequeath the sum of to Maria Wetherell,
and the sum of to Jane Gibson Wetherell, and the
sum of to Mr. James Faxon and his wife, and the
sum of to Mr. and Mrs. William Paxon, and the
sum of to each of my executors for their trouble
on my behalf, and all legal and just costs and expenses
attending and requisite for the due discharge of
• And I do nominate and appoint Mr. Thomas
Nathaniel Wetherell, surgeon, of Highgate, to be one of
my executors, and Mr. . Signed by myself
this 30th day of September, in the year of our Lord One
thousand eight hundred and fifty-five.
** William de Cauliee.
" In the presence of
" Mary Dallisor, 24, Halliford Street, Islington ;
" Henry Edis Webster, 24, Halliford Street, Islington.
Witnesses to this my act, deed, and signature."
The testator died on the 20th of xVpril, 1861, and after
his death the will, with certain words written in the
places where the blanks in the draft were left, in his own
handwriting in pencil, and an unattested codicil also in
his own handwriting, were found in his house ; but the
Court of Probate refused probate of the codicil and of
the pencil additions, and on the 11th of June, 1861,
probate of the will, without the pencil additions, was
granted to the plaintiff.
54
OASES IN CHANCERY,
1882.
Wethbrbll
V.
Wetherell.
Statement.
Phoebe de CauKer survived the testator. They never
had more than one child^ which died a hours after its
birth. The testator had a brother and sister, but they
both died in his lifetime without having been married.
The plaintiff Nathaniel Thomas Wetherell (in the will
called Thomas Nathaniel) Wetherell was a relative of the
testator, but whether next of kin at his death, or who
was or were his next of kin at his death, the plaintiff did
not know. The plaintiff had had seven children by his wife
Louisa Wetherell (three of whom had attained the age
of twenty-one years, and four were infants), and one
grandchild, a son of his eldest son. All the children and
grandchild were living at the testator's death, and all
were defendants.
The testator at his decease was possessed of consider-
able personal estate, and seised of a freehold estate ; he
was also the owner of a small copyhold property held of
the manor of Stepney.
The defendant Phoebe de Caulier (the testator's widow)
alleged that, according to the true construction of the
will, the testator died intestate as to some part or interest
at least in his personal estate and freehold and copyhold
property, and she clwmcd, as his widow, to be entitled to
her dower out of the freehold and copyhold estates, and
to one equal third part or share of the personal property.
The bill prayed for certain declarations, with the usual
administration decree.
Argument,
Mr, Bacon and Mr. G. L, Russell for the plaintiff,
asked for the usual administration decree, and the decla*
ration of the rights of the parties.
Mr. Malins and Mr. Pemberton, for those children who
had attained twenty-one, contended that the whole of the
income was divisible among them until some other child
should attain twenty-one, when it would have to be again
CASES IN CHANCERY.
55
divided according to the then number of shares, and so 18(».
on until all the children had attained twenty-one. wethersll
V,
Mr. Freeman^ for the infants, submitted that all the
children who were living at the death of the testator were ^^ff^*'^*-
absolutely entitled.
Mr. Eddis appeared for a grandchild.
Mr. Oreene and Mr. Springall Thompson^ for the widow,
contended that there was nothing in the will to put her
to elect between the annuity and her dower. The claim
for dower was wholly independent of the will, and did
not conflict with it, and in such case a provision in the
will did not disentitle the widow from dower : Pickering v.
Lord Stamford{a),
Mr. OaiVjr, for James Paxon, one of the next of kin,
contended that the gift was void for uncertainty and
remoteness: Goochw. Gooch{b)^
Mr. J. IL Palmer and Mr. Woodhouse^ for another of
the next of kin, took the same view, and cited Bastin v.
Watts{c)y Belly. Blann{d), Wordmrorth v. Wood{e).
The Vice-Chancellor : —
The first question seems to be whether or not tlie tes-
tator lias disposed of his real as well as of his personal
estate, and I think, considering that in the latter part of
the will he speaks of the " casual property reverting to
the estate whether of leasehold or copyliold," it is impos-
sible to hold that the testator did not intend by his will
to dispose both of his real and j^ersonal estate. In this
Judgment.
(a) 3 Yes. 331.
{h) U Beav. 505.
(e) 3 Beav. 97.
(il) 5 De 6. & Sm. 658; s.e.
2 D. M. & G. 775.
{e) 2 Beav. 25; 8.c. 1 H. of
L. Ca. 129.
56 CASES IN CHANCERY.
1862. case, as in the cases cited, the first duty of the Court is
Wethbrbll to give effect to the testator's language, according to the
Wetherbll. ^i^st plain and rational meaning which can be ascribed
, ■; , to it. It is a fundamental rule of construction, where a
Will plainly mentions persons who are the objects of the
testator's bounty, to construe it in such a way as if
possible to avoid an intestacy. That is the general rule,
in support of which no case need be cited : it pervades
every case where the Court has to construe a will.
Another rule is that, where there arc words which in
themselves have a plain, clear, and sensible meaning, they
are not to be controlled by any words or expressions
which are more obscure or ambiguous. The first ques-
tion is as to the widow's right to dower, and it seems to
me that she is clearly entitled to dower. No case of
election can arise, for the testator's language is that ^^ If
she makes and persists in any claims upon the residue of
his property, she is to forfeit the annuity of 28/." That
refers to some claim made in his lifetime, and could not
be a claim for dower. Therefore it seems to me that no
case of election arises, and that the widow is entitled to
dower, and also entitled to the annuity bequeathed to her
by the will. The next question is of very considerable
difficulty. Although the testator speaks of all the residue
of his property, and although he speaks, in the clearest
terms, of the children and grandchildren of the present
plaintiff as the objects of his bounty, yet, except by im-
plication, there is little or nothing to be found in the will
that amounts to a clear and absolute gift. His first di-
rection is, that "the annual interest only of all the
residue of my property, of whatsoever kind or where-
soever placed, shall be divided into as many equal parts
or shares as there may be children living and begotten of
the body of Thomas Nathaniel Wetherell on the body of
his present wife Louisa Wetherell, share and share alike,
as each of the said children come of age.^ The direction
CASES IN CHAKCERT. 57
there to divide the whole annual interest of the whole of 1B62^
his property is clear and express. Wbthkrbll
The number of shares is to be equal to the number of wktherbll.
children of the persons named who should be living at — " ^
his death. There seems no doubt so far ; but, when he
says, " as each of the said children come of age," there
are no words of gift to any except by implication. It
has been contended that the division is, at first, to be
only among those children who are of age at the time of
the testator's death. There are seven children, three of
whom were of age at the testator's death, and it is
suggested that there is to be a division of the property
(in the events that have happened) in three shares, then
when the next child comes of age into four shares, and
so on. There certainly is no direction to that effect in
the will, and it is difficult to reconcile that construction
with the language of the testator. I cannot reject the
words ^* into as many equal parts or shares as there may
be children living and begotten," which must mean at the
time of his death, and that amounts to a direction to
divide into seven shares. But the words ^^ as each of
the said children come of age " are said to mean that
there is to be no gift to any child till he or she comes of
age. That would be so if these words " as each comes
of age " were incorporated with a gift; but the diflBculty
of the will is, that there is no gift here at all except by
implication, and these words, not being incorporated into
any gift, cannot, in my opinion, be read in the sense con-
tended for, but must be dealt with as well as may be so
as not to occasion any construction incompatible with
what is clear.
The meaning of the next words seems reasonably
clear. They are " in case any one of the said children "
(that would be in this case any one of the seven) *^ shall
die without any children of their own lawfully begotten,
then in that case his or her share of the said annual
V.
Wethbrbll.
Judgment,
58 CASES IN CHANCERY.
1862. interest (as the case may be) shall devolve to the aur-
Wbthbrbll viving children share and share alike." By the effect of
these words the share of any child dying without having
had a child is to go to the surviving children. There is
clearly involved in that a gift by implication to the chil-
dren of a childj because it is only the share of the child
who dies without having had any children that is to go
over. In that is involved^ therefore^ as it seems to me,
upon the principle of construing gifts by implication^ a
gift by implication to the children of such of those chil-
dren of the plaintiff as shall have children.
It has been contended that there is no gift here of the
corpus of the property, but only of the income, and that
there is no gift of the income to anybody but for a life
estate. It is very well settled the words "the whole
interest," or " the whole rents and profits," uncontrolled,
will carry the absolute interest as to personal property,
and the fee simple as to real estate. But here, in the
first gift to the children, they are, I think, controlled by
the word " only." " The annual interest only " is what
is to be given, or, rather, what is dealt with by the testa-
tor when he speaks of the children living at his death.
But, as he proceeds, and introduces words of gift over in
the event of a child dying without any children of his
owuj the word of qualification ** only " is left out, and, in
a subsequent part of the will, where as to particular parts
of his property there is a direction to call it in and invest
it, the investment is said to be for the benefit of the said
children, that is, the children who are the objects of his
bounty ; and his expression is, ** to be immediately in-
vested in the best Government securities, the interest
thereof to be received for and on behalf of the aforesaid
children." There are no words of limitation there ; the
word " only '* is dropped ; and as the testator speaks of
the whole of his property and of certain persons, clearly
indicating them as the objects of his bounty, it seems to
CASES IN CHANCERY. 59
me that I should transgress a sound rule of construction
If I were to hold that there was here only a gift of in-
come, and merely a gift to the objects of his bounty of ^bthbrblu
life estates.
The subsequent part of the will, in which he uses lan-
guage speaking of great-grandchildren, no doubt creates '
a difficulty, but that difficulty is very much removed by
considering that in the language used in that part of the
will there is no clear gift to great-grandchildren, or to
grandchildren at all. They are merely words explanatory
of his hope as to the future enjoyment of his .property,
for he says, *'and so on successively until the whol?
amount of the said interest of the said residue comes into
the hands of the grandchildren and great-grandchildren
of the above said Thomas Nathaniel Wetherell and of
his wife Louisa Wetherell." I can only construe these
words as meaning that he looked forward into futurity to
the time when the children and grandchildren and great-
grandchildren should enjoy it. But there are no express
words of gift to the great grandchildren, and I am not at
Uberty, because he mentions great-grandchildren and
uses towards them no express words of gift, to strain the
language of the will so as to defeat that which seems to
me his plain meaning, namely, to give the children living
at his death and the children of those children interests
in his property.
Upon the whole, therefore, notwithstanding the diffi-
culties of construction, it seems to me that the meaning
of the testator was to give the income only of his real
and personal estsite to all the children of the plaintiff who
should be living at his death ; that there is a gift by im-
plication to the children of those children ; and, there
being nothing to restrain it, that that gift carries to them
absolute interests. But there is a clear gift over in the
event of any of the children dying without ever having
had a child, and a gift over to the survivors, not abso-
60 CASES IN CHANCERY
18G2. lutely to those who are only to take as tenants for life,
Wbtiierell but the accruing share is to go according to the same
Wbtuerell. lii^i^tion of interest as the original share ^vliich is given
" — by the will. I propose, therefore, to make the decree in
these terms : — " Declare, that the widow is entitled to
her dower, and also entitled to the annuity of 28/. be-
queathed to her by the will. Declare that, according to
the true construction of the will, all the children of the
plaintiff by Louisa his wife, in the will named, living at
the death of the testator, became entitled to the whole
annual interest, rents, and profits of the clear residue of
the real and personal estate of the testator as tenants in
common for life, with remainder to all the children of
such children as tenants in common absolutely, /'er^/i/T^e;,
as to the personal estate, and as to the real estate as
tenants in common in fee, per stirpes; but in case any of
the said children of the plaintiff shall die without ever
having had any child, his share to accrue and belong to
the surviving children for their lives, and the children of
such surviving children, according to the above declara-
tion.
CASES IN CHANCERY. 61
1802.
November 7,
SE ATON V. ST ANIL AND. %^'^ ^^\l]'
U NDER the will of George Althas, of Brotherton, gm ^ ^^^^
Yorkshire, who died in 1819, Edward Watson and George ?^*,T°^^-
' ' ^ ^ ° fant'p property
Althas Staniland became tenants in common in tail of »anctioned by
-r* t fiM T • X *^® Court, in
certain estates situate at Brotherton. They entered into pursuance of
partnership as lime-burners on the property, which con- ^ Sduding*'
sisted chiefly of extensive lime quarries. certain trade
In 1844 Edward Watson withdrew from the partner- alleged to have
ship, and by deed of the 15th of July, 1844, the property por^ "m^"
was demised to George Althas Staniland for fifty years, if f/^*^^"^ ^g^,
£dward Watson should so long live; and at the same by expunging
n«ti 1 Ti.i «• ^'ai ^® covenant
time Staniland purchased his late partner s interest in the as to delivery
business plant, stock-in-trade, tramroads, and everything gionof^^ng
belonging to the business. At this time there was no c"P» and
, . other particu-
steam machinery on the premises. lars, dismissed
In July, 1845, G. A. Staniland died in insolvent cir- there^^ingno
cumstances, being indebted to the amount of 14,367/. t^M^^sewM
Part of the assets was the above lease. An arrangement inconsistent
was come to by some of the principal creditors who were ment, one of
firiends and relations of the deceased, and ultimately a betng^the"
partnership was formed among them under the style of ^"^"JJ***
William Staniland & Co.
In pursuance and further execution of the same
arrangement, by a release dated the Ist day of July,
1846, and made between the said William Staniland,
Sarah Seaton, Thomas Hawdon, and William Hawdon
of the first part, and the plaintiff Preston Seaton and
the defendant Matilda Staniland, widow, therein described
as executor and executrix of the said testator George
Althas Staniland, of the second part, after reciting that
the said testator was at the time of his decease indebted
to the several persons parties thereto of the first part in
62
OASES IN CHANCERY.
1862.
S BATON
V.
Stanilavd.
Staimnent,
the several sums of money following, that is to say, — to
the said William Staniland 4800/., to the plaintiff Pres-
ton Seaton 500/., to the said Sarali Seatori 1000/., and
to the said Thomas Hawdon and William Hawdon as
trustees of the marriage settlement of the plaintiff Pres-
ton Seaton and Mary his wife 400/., and that the remain-
ing assetB of the said testator in the hands of the plaintiff
Preston Seaton and the defendant Matilda Staniland,
widow, as such executor and executrix as aforesaid,
applicable to the payment of his aforesaid debts, consisted
of the following particulars, namely, a moiety of the
said hereditaments at Brotherton, held for the residue of
a term of fifty years if the said Edward Watson should
so long live, created by the said indenture of the 15th
day of July, 1844, and certain stock in trade, plant,
fixtures, and implements of trade, book debts, chattels,
and effects of and belonging to the said testator's business
of a lime-burner, but which assets were wholly insuffi-
cient for payment of the said testator's said debts : And
fiirther recitiog that the said parties thereto of the first
part had applied to the plaintiff Preston Seaton and the
defendant Matilda Staniland, widow, for payment of
their said debts, which the plaintiff Preston Seaton and
the defendant Matilda Staniland, widow, being unable to
do, they had proposed to the said parties thereto of the
first part to accept and take the said leasehold and chattel
property, debts, and effects, the remaining assets of the
said testator in full discharge and satisfaction of their
said debts, and to give and execute to them Preston
Seaton and Matilda Staniland, widow, as such executor
and executrix as aforesaid such release from their said
debts as therein contained, which the said i)arties thereto
of the first part had consented arid agreed to do : And
further reciting that in pursuance of the said agreement
the said Preston Seaton and Matilda Staniland, widow,
had immediately previous to the execution of the now
StaUtnenU
CASES IN CHANCERY. 63
stating indenture^ at the request of the sud parties 1868.
thereto of the first part, assigned and delivered to or sbatok
otherwise vested in the said William Staniland and Wil- sj^^J^l^kd.
liam Hawdon upon trust for the said parties thereto of
the first part the said lease and premises at Brotherton^
and the said stock in trade, plant, fixtures, implements
of trade, book debts, chattels, and effects, the due assign-
ment and delivery of which said leasehold and chattel
property, debts, and effects, and that the same was ac-
cepted and taken by them in full satisfaction and dis-
charge of their aforesaid several and respective debts:
They the said parties thereto of the first part did thereby
severally and respectively admit and declare it was by the
now stating indenture of release witnessed that for the
consideration aforesaid and other the premises, and in
pursuance of the said agreements, and for divers other
good causes them thereunto moving, they the said William
Staniland, Sarah Seaton, Thomas Hawdon, and William
Hawdon, thereby remised, released, and for ever quit
claimed and discharged unto the plaintiff Preston Seaton
and the defendant Matilda Staniland, widow, and each of
them respectively, and the heirs, executors, and adminis-
trators of each of them, and each and every of their lands
and tenements, good and chattels, the aforesaid several
debts so due and owing to them the said several parties
thereto of the first part from the estate of the said testa-
tor George Althas Staniland, deceased, as aforesaid, and
all interest in respect thereof, and all actions, suits, claims,
and demands whatsoever for or in respect of or in any-
wise concerning the same.
In further pursuance of this arrangement a lease was
executed dated the 2nd of July, 1846, and expressed to
be made between Preston Seaton and Matilda Staniland
of the one part, and the said William Staniland and
William Hawdon of the other part. It recited that
Preston Seaton and Matilda Staniland, as executor and
64
CASE8 IN CHANCERY.
1803.
Sbaton
V.
Staniland.
statement.
executrix of the testator, had contracted with William
Staniland and "William Hawdon for the sale to them of
the premises comprised in the lease for the residue of
the term, and of the testator's " stock-in-trade, plant,
fixtures, barges or vessels, and implements of trade,
chattels, and effects particularised and set forth in the
first schedule," subject 1o the lessee's rent and covenants,
at the price of 6700/., i.e. 1500/. for the purchase of the
said leasehold premises and debts, and 5200/. for the said
testator's *^ stock-in-trade, plant, implements, and effects "
particularised and set forth in the said schedule ; and
witnessed that, in consideration of 6700/. therein alleged
to have been paid by William Staniland and W. Hawdon
to Preston Seaton and Matilda Staniland, they the said
Preston Seaton and M. Staniland assigned unto the said
W. Staniland and W. Hawdon, their executors, adminis-
trators, and assigns, all and singular the moiety of the
lands comprised In the lease of July, 1844, ** together
with all additions and improvements to the said premises,
and all other the premises then held under the said lease,
and all goods, rails, trams, bridges, tunnels, culverts,
canals, wharfs, landings, rights, ways, members, and ap-
purtenants," for all the residue of the term, subject to
to the rent and performance of the lessee's covenants.
The first schedule to the deed was as follows: — "4340
yards of railway (single line), sixty-one lime and stone
waggons, tools, wood and iron, necessary for the trade ;
nine horses in the trade, four vessels, two third parts or
shares of another vessel called the Two Sisterss lime set
new pits, new limed pits, and stone at the cut." The
debts specified in the second schedule amounted to the
sum of 542/. 6^. 5d.
About this time a steam engine, house, and machinery
were erected on the premises, which were not specifically
referred to in the lease.
Also, in pursuance and part execution of the said ar-
CASES IX CHANCERY.
65
rangementy the said William Staniland advanced the wild
sum of 2000/., which wa8 aj^plied in part ]>ayment and
satisfaction of the said debts of the said testator George
Althas Staniland, amounting to 6917A as aforesaid, and
to secure the repayment of the said 2000/. and interest,
by an indenture of mortgage dated the 4th day of July,
1846, and made between the said William Stanilnnd and
William Hawdon of the first part, the plaintiff Preston
Seaton and the swd Thomas Plawdon and William Haw-
don of the second part, and the plaintift' William Stan-
dering of the third i>art, and executed by all parties:
After reciting the said lease of the I5th day of July,
1844, and that by virtue of several mesne assignments
and assurances in the law, and ultimately by virtue
of the said indenture of the 2nd day of July, 1846,
and made between the plaintiff* Preston Seaton and
the defendant Matilda Staniland, widow, of the one
part, and the said William Staniland and William
Hawdon of the other i>art, the said thereinbefore recited
lease, and the premises comprised in and demised by the
same, became absolutely vested in the said William Stani-
land and William Hawdon for all the residue of the afore-
said term of years, subject to the rent, annuity, and
covenants in the said lease reserved and contained : And
further reciting that the said lease and premises were so
vested in the said William Staniland and William Haw-
don upon trust for the said William Staniland, the plain-
tiff Preston Seaton and the said Thomas Hawdon and
William Hawdon, their respective executors, adminis-
trators, and assigns, as tenants in common : And further
reciting that an engine-house and other buildings con-
nected therewith had then lately been erected and built
on the hereditaments and premises comprised in the said
recited indenture of lease, and that there had also been
affixed to or placed upon, in, or about the said premises, or
some part thereof, a pteam-engine and boiler, together
VOL. IV. F
ISChi.
Statetnent,
66
CASES IN OHANCEBY.
Id62.
Sbatok
Staniland,
Stattmint'
with a quantity of macliinery and other things requisite
to carry off the water from the lime quarries upon the
said premises, and for other purposes connected with the
said trade or business : And further reciting that the
said William Staniland and William Hawdon were pos-
sessed of or entitled as aforesaid to the plant, fixtures,
barges or vessels, horses, and implements of trade men-
tioned in the second schedule thereunder written, and
that the said William Staniland and William Hawdon,
with the concurrence of the plaintiff Preston Seaton and
the said Tliomas Hawdon, had requested the said William
Standering to lend them the sum of 2000/., which the
said William Standering had agreed to do on having the
repayment thereof with interest secured in manner there-
inafter expressed : It was by the now-stating indenture
witnessed that, in consideration of the said sum of 2000/.
by the said William Standering to the said William
Staniland and William Hawdon, with the privity of the
plaintiff Preston Seaton and the said Thomas Hawdon
paid as aforesaid, they the said William Staniland and
William Hawdon, at the request and by the direction of
the plaintiff Preston Seaton and the said Thomas Haw-
don, granted, bargained, sold, and demised, and the
plaintiff Preston Seaton and Thomas Hawdon ratified
and confirmed, unto the said William Standering, his
executors, administrators, and assigns, all and singular
the moiety, lands, tenements, and hereditaments com-
prised in and demised by the said thereinbefore-recited
lease, together with all additions and improvements to the
said premises, and all other the premises then held under
the said lease ; and all roads, trams, bridges, tunnels, cul-
verts, canals, wharves, landings, rights, ways, members,
and apinirtenances, together with the said lease ; and also
all and singular the said steam-engine, boilers, works, fixed
and movable machinery, implements, and utensils thereunto
belonging then fixed or placed upon or used in or about the
V.
Stanilamo.
Statetneni,
CASES IN CHANCERY, 67
said premises as the same were specified in the first sche- 1862.
dale to the now-stating indenture, and all right, title, skaton
property, interest, claim, or demand whatsoever of them
the said William Staniland and William Ilawdon, or
either of them, in and to the same; to hold the said
moiety, lands, and premises, and all and singular other
the premises thereinbefore expressed and intended to be
thereby demised, and all such part and parts of the said
engine-house, steam-engine, and machinery as were
affixed to the freehold, unto the said William Standering,
bis executors, administrators, and assigns, for and during
all the residue then yet to come and unexpired of tlie
term granted by the said thereinbefore-recited indenture
of lease, except the last day of the said term, subject
nevertheless to the proviso for redemption therein-
after contained, and to hold all such part and parts of
the said steam-engine, works, machinery, and premises
thereinbefore assigned, or expressed and intended so to
be as were not affixed to the freehold, unto the said
William Standering, his executors, administrators, and
assigns absolutely, subject nevertheless to the proviso
for redemption thereinafter contained. And it was further
witnessed that in further pursuance of the aforesaid agree-
ment, and in consideration of the aforesaid sum of 2000/.
so lent to the said William Staniland and William Haw-
don as aforesaid, they the said William Staniland and
William Hawdon, at the request and by the desire of
the plaintiff Preston Seaton and the said Thomas Haw-
don, had granted bargained, sold, assigned, transferred,
and set over unto the said William Standering, his execu-
tors, administrators, and assigns, all and singular the
plant, fixtures, barges or vessels, implements of trade,
chattels, and effects mentioned and set forth in the second
schedule thereunder written or thereunto annexed, and
all right, title, interest, property, claim, and demand
whatsoever of them the said William Staniland and
F 2
68
CASES IN CHANCERY.
1862.
Sbaton
V,
Stan I LAND.
Statement,
William Ilawdon, or either of them, of, in, or to the
same ; to hold all and singular the said plant, fixtures,
barges or vessels, implements of trade, chattels, and
effects, thereinbefore expressed and intended to be
thereby assigned unto and by the said William Stan-
dering, his executors, administrators, and assigns, thence-
forth as his and their own property absolutely, subject
only to the proviso for redemption thereof thereinafter
contained, that is to say, — a proviso for redemption on
payment by the said William Staniland and William
Hawdon, or either of them, their or either of their heirs,
executors, or administrators, unto the said William Stan-
dering, his executors, administrators, or assigns, of the
sum of 2000Z. with interest thereon, on a day therein
named and long since passed.
The first schedule to the said last-mentioned indenture
was as follows: — "One steam-engine of 4-horse power
high i^ressure, witli 4-hor8e boiler, the shaft of the fly-
wheel working two pumps 6 inches in diameter and 39
feet long, by an eccentric movement on the face-plate,
witli cold water force-pump attached to the engine."
By a declaration of trust dated the 6th day of July,
1846^ and made and duly executed between and by t}ie
said William Standering of the one part, and the said
William Staniland of the other part, after reciting the
said mortgage of the 4th day of July, 1846, and that
the said sum of 2000/. was the proper money of the said
William Staniland, it was declared that the said William
Standering should stand possessed of the said mortgaged
premises, monies, and interest in trust for the said
William Staniland, his executors, administrators, and
assigns absolutely.
The second schedule was in the same terms as that to
the deed of lease of 2nd July.
The bill alleged that the engine, boiler, and pumps
were put up after the formation of the partnership of
Statcmetit,
CASES IN CUANCERY. 69
Wm. Staniland & Co., and at the sole cost of the firm. ^18G2^
It also alleged that by the custom of the trade and skaton
country the steam-engine and machinery, as well as the stanilakd.
rails, plant, and utensils, were the property of the firm
as tenants' fixtures, and not the property of the landlord
as landlord's fixtures.
In further pursuance of the above arrangements, and
in pursuance of an agreement previously entered into,
an apjilication was made to the Court under the statute
to sanction a lease by the infant George Althas Staniland,
the only son of the testator G. A. Staniland, during his
minority, of the moiety in the said estates, of which he
was tenant in tail. A reference was made to the Master,
who, after referring to the state of facts on the part of
the infant in support of granting a lease, " to contain
the covenants used in similar cases, and according to the
custom of the country," duly made his report, which
was afterwards confirmed, and it was referred back to
him to settle a proper lease according to the report.
The lease so settled and apj)roved (being the lease now
sought to be rectified) was dated the 1st of December,
1846, and expressed to be made between the said G. A.
Staniland the younger (the infant), of the one part, and
W. Staniland and Preston Seaton of the other part; and
thereby the said G. A. Staniland the younger, by virtue
of the said Act of Parliament (1 Will. 4, c. 65), and with
the approbation of the master, demised to W. Staniland
and P. Seaton, their executors, administrators, and
assigns, the said moiety of him the infant in all the free-
hold, copyhold, and leasehold estates at Brotherton, and
of and in all and singular the engine-house and all other
buildings then stiinding on the premises, and of and in all
and singular the steam-engine, boilers, jmmps, machinery,
and utensils then fixed and placed in and about the said
engine-house and premises, and all "roads upon which rails
were then laid and used as trainroads," and all other roads,
70
CASES IN CHANCERY.
1802.
Sbaton
V,
Staniland.
StmtemenU
bridges, &c., with liberty to bare and win stone, &c., for
the term of fifteen years and six months from the lOth of
January then last, the said W. Staniland and P. Seaton
paying an annual sum of 200/. by way of surface rent,
and a royalty of \s. for every superficial square yard
of land which should be cut or bared for stone. The
lessees, among other covenants, covenanted to keep the
lands, hereditaments, and premises thereby demised, and
the said messuages, building, and engine-house, wharves,
ditches, &c., railroads, tramroads, &c., and all and singular
the engines, machinery, erections, and premises then
standing and being, or which at any time thereafter
should or might be erected or built upon the said premises,
or from time to time substituted in the place thereof, in
good and substantial order and repair, and at the ex-
piration or other sooner determination of the term peace-
ably to yield up the same.
William Staniland died in April, 1852, having appointed
the last three of the present plaintiffs his executors. The
partnership firm of William Staniland & Co. turned out
to be a losing concern, and in 1860 the business was
wound up. The plaintiff Preston Seaton, on behalf oi
the executors, sold the iron rails comprised in the lease,
with scrap iron, for 401Z. 5s, 9rf., of which the rails pro-
duced 378/. 12*., which sum, with the produce of the sale
of horses and sundry effects of the value of 221/. 17**,
and of the sale of the engine, reduced the mortgage debt
by nearly 900/. G. A. Staniland, the infant, died in
1846, and upon his death his moiety in the estates, sub-
ject to the lease, passed to the defendants his four sisters
as tenants in tail. On the 5th of July, 1861, the infants
filed a bill against Preston Seaton, Matilda Staniland,
widow, and others, and alleging inter alia that Preston
Seaton had not jjaid the rents since the death of the
infants, but had allowed the plant to be sold, and praying
for an account of rents of the moiety which they had
CASES IN CHANCERY.
71
received, or, but for their wilful default, might have
received, and for a receiver, and that Preston Seaton
and other defendants might make good the loss. The
lease expired on the 10th of July, 1861, and the
defendant Matilda Staniland and her sisters M. J. and
S. H. Staniland and Mrs. Peel and her husband shortly
afterwards brought several actions on the covenants in
the lease against the executors of W. Staniland, who
thereupon filed this bill, asking for a decree to rectify
the lease by excluding the fixtures and varying the
covenants as to delivering up possession of the growing
crops.
This bill prayed that the lease of the Ist of December,
1846, might be rectified, by excluding from the grant and
demise thereby made the steam-engine, boilers, pumps, and
machinery, the rails or tramways, and the trade plant, im-
plements, and effects belonging to the firm of Staniland &
Co., which at the date of the lease were on the premises;
also as to the delivery up of i)os8e8sion of tlie property
other than the lime-quarries, &c., in the occupation of the
firm, by providing for the delivery up of the same, subject
to the usual custom of the country; and for other conse-
quential relief.
1869.
Seaton
V.
Staniland.
Statement,
Mr. Bacon and Mr. G. L. Russell for the plaintiffs. — Argument.
There are two points in which the lease was inaccurate :
first, inasmuch as it included the engine and machinery
purchased after the partnership, as a part of the infant's
property ; and secondly, as to the covenant for delivery
up of possession of things which were the property of the
lessees, either in their own right or by the custom of the
country. It was quite clear there had been a mistake
made by the Master, and which this Court would correct.
[The Vice-Chancellok. — The question would seem
to be whether there had been any proposal to demise the
plant.] The only proposal was to demise the infant's
72
CASES IN CHAKCEKY.
1862.
Seaton
r.
Staniland.
Argument,
interest, which did not comprise the plant and machinery.
The burden was on the other side to show why this Court
should not correct a palpable error committed by its own
officer, whereby the plaintiffs were damnified.
Mr. Leiffh Pemberton^ on behalf of the two defendants
Ilawdon, supported the plaintiffs' case.
Mr. Malin^y Mr. Craiff^ and Mr. C. Hally for the de-
fendants.— This was the first time that the Court was
asked to presume a mistake against an infant at the
instance of those who were sui juris and acted under legal
advice. The learned counsel on the other side had not
referred to any case in which the Court had thus acted —
no doubt because no such case was to be found in the
books. [The Vice-Chancellou, — It is not a question
of contract, as rectifying a settlement: tliis is a case
where the Court has approved of the instrument.] The
eflfect of the petition is that a lease granted under the
Act must be treated, analogously to property settled
under the 17th section of the 1 Wni. 4, c. 65, s. 17, exactly
as a lease granted by a person sui juris,. But, even
supposing tlie lease was granted by a person suijuris^ the
Court would not, on a mere parol statement, vary the
terms : The Marquis of Toicnshend v. Stangrove^a). But
here there was no evidence of error in the lease ; but the
error, if error there were, must be assumed to be in the
agreement, inasmuch as there was nothing to show that
the lease was not in conformity with the agreement. The
plaintiffs were bound to show that there had been a com-
mon mistake on both sides, which was not even suggested
in the bill.
jut/fjmnu. The Vick-Chancellok: —
In this suit the plaintiffs have sought to be relieved
against the legal effect of the covenants and obligations
(a) G Ve». 328, 33o.
r.
STANII^VtD.
Judgment,
CASES IX CHANCERY. 73
of a lease whicli was granted by an infant under the iftC2.
statutory jurisdiction of this Court. The bill prays that seaton
the lease may be rectified so as to exclude from the grant
and demise a steam-engine and rails and other machinery^
which, as the plaintiffs allege, were not the property of
the infant lessor. It is also asked that the covenant as
to the delivery up of |x>ssession may be altered in other
particular, and especially as to growing croi)S. It is
needless to enter into a consideration of the difficulty of
cst;\blishing in any case a right of relief against covenants
beneficial to an infant lessor deliberately entered into by
the lessee under the sanction of this Court, and exacted
by the Court for the benefit of the infant. All the pro-
ceedings before the Court, and in the Master's office,which
led to the preparation and execution of the lease in ques-
tion, seem to have been careful and regular. The steam-
engine and rails, which are said to have been improperly
included in the demise, were used in working the lime
quarry, which was* the principal subject of the lease. It
appears from the evidence that the engine and rails, if
they were not such fixtures as belonged to the infant
lessor, were the property of the lessees, and so entirely
under their dominion that they were entitled to covenant
to deliver them up to the lessor at the end of the term.
There is no evidence whatever to prove that there was
any mistake on the part of the lessees as to including
these articles in the demise and the covenants. If they
were the property of the infant it is clear that they were
proi^erly included. If, on the other hand, they were the
property of the leesses, being essential to the convenient
working of the quarry, there was nothing unreasonable
in their agreeing to include them in the demise, and
agreeing to covenant to deliver them up to the lessor,
with the quarry itself, at the end of the term.
It is truly alleged in the 57th paragraph of the bill,
that the lease was ordered to be granted according to the
74
CASES IN CHANCERY.
1862.
Sbaton
V,
Stanilano.
Judgment,
Master's report and the conditional agreement of the
plaintiff Preston Seaton and his co-lessee. Tlie bill
states that this conditional agreement was dated the 7 th
of July, 1846. By that agreement the plaintiffs were
certainly bound. To entitle themselves to any part of
the relief prayed by their bill they must prove that agree-
ment. But it is not produced, nor is there any evidence
of its contents to show that the lease as approved by the
Master, and as executed, is not in every respect — as to the
property comprised in it, as to the term of years created
by it, and as to the covenants — in every particular en-
tirely conformable to the agreement entered into by the
lessees.
The attempt on behalf of the plaintiffs to show that, as
to the growing crops and the custom of the country, there
is a mistake in the lease, must fail for the same reason.
There is no evidence whatever of any such violation of
the custom of the country in any of the covenants as
would justify the Court in relieving the plaintiffs from the
obligation of the covenants for the benefit of the infant
lessor, into which they deliberately entered under the
order of the Court, and according to an agreement the
terms of which they have not proved to be in any one
particular inconsistent with the covenants of the lease.
It is not an unimportant circumstance that the plaintiff
Preston Seaton was one of the guardians of the infant of
whose property he obtained this lease, nor is it unimpor-
tant to observe that it is not until the plaintiffs have had
the full benefit of the lease, and after it has expired, that
they come forward and ask to have it rectified, so a^ to
take away benefits to the infant lessor which by the lease
it was deliberately covenanted that he should have* As
the case of the plaintiffs has entirely failed the bill must
be dismissed with costs.
CASES IN CHANCERY. • 75
186-2.
yov. 5, 12,
L ACON V. LIFFEN. n, 5 lo.
1 HIS bill was filed by the plaintiffs, bankers, of Great \Miei-c the
Yarmouth, against Thomas Brown Liffen, the mortgagor, morVagees of
and William Bell and John Rous, the assignees in bank- jj^'/^^ J* Jj^'l^
ruptcy, of Messrs. Peters & Peacock, fish merchants, of sited the mort-
gage deeds
the same place. with their
The bill stated that on the 20th of December, 1858, J'el^ilri ty for a
there was a cash balance of 564/. ISs. 2d. due from debt, and
afterwards
Messrs. Peters & Peacock to the plaintiffs on a current became bank-
account at their branch bank at Lowestoft, and, on the ^^t, the^sta-
plaintiflTs requiring a security for the same, Messrs. ^J^^"^^^^ °^
Peters & Peacock, on the 20th of December, 1858, being by
■I -I'll I'./r.! n ' n i IndoPBcment,
deposited with the plamtiffs, by way of security for ttiat the mortgagei
sum, and any future demands, the three following SeaU^tfi^by
securities : — **^® bankrupts,
and therefore
1. A security dated the 18th of December, 1858, were not in
whereby a ship or boat called The Five G^s was mort- disposition.
gaged by the defendant Liffen to Messrs. Peters to ijyttJSder ot^
secure the repayment of 60/. and interest on the 20th of all his stock-
. , in-trade to
August then next. secure an
2. Another security of the same date whereby another JebTand"'
boat called The Six B'b was mortgaged by Liffen to the *!J ^^^^'^ .
° ° *' , advances is
same parties to secure a like sum of 60/. and interest on an act of
the same date. * * ^^'
3. A mortage security of the same date, whereby
a third boat called The Rapid was mortgaged by one
Samuel Capps to the same parties, to secure repayment
of 35/. and interest from the same date. These mortgages
Were registered at the custxjm-house at Lowestoft on the
20th and 21st of December, 1858.
The bill alleged that on the 22d of December, 1858,
two cheques amounting to 112/. 13** 3rf. drawn by
76
CASES IN CHANCERY.
1862.
iStatement,
Messrs. Peters were presented at the Lowestoft Bank,
which the plaintiffs refused to honour except Messrs.
Peters would give them, by way "of further security, a
bill of sale of the furniture, goods, and effects in Messrs.
Peters & Peacock's dwelling-houses and fish offices at
Lowestoft. To this Messrs. Peters & Peacock assented,
and executed a bill of sale, whereby, after reciting tliat
Messrs. Peters & Peacock were then indebted to the
plaintiffs in the sum of 578/., and had agreed to secure
tlie repayment thereof, and also any further moneys in
which they might thereafter become indebted to the
plaintiffs in pursuance of the agreement, and in conside-
ration of the premises, all the furniture, goods, and effects
in Messrs. Peters & Peacock's dwelling-houses and fish
offices at Lowestoft, their book and other debts, and all
the personal estate whatsoever^ of or to which the said
Messrs. Peters & Peacock were then, and at all times
thereafter, so long as any moneys should remain due and
payable to the plaintiffs, should be entitled, were assigned
to the plaintiffs, with i)0wers of attorney, &c.
On the 23d of December the plaintiffs paid the two
cheques, and the balance due to them from Messrs.
Peters & Peacock amounted on that day to 581/. 18.9. lOr/.
Messrs. Peters & Peacock were the registered owners at
the time of the bankruptcy.
The bill alleged that Messrs. Peters & Peacock had
agreed to execute a legal transfer of the
mortgage
securities, but had not done so. It was alleged also in
the evidence that on the 23rd of December Mr. Peters was
willinff to execute such transfers, but Mr. Peacock refused.
On the 28th and 29th of December the bill of sale
was put in force by the plaintiffs, and realised the sum of
280/. 5s. &d. On the 29th and 30th of December they
gave to the mortgagors notice of their holding the
securities.
On the 30th of December Messrs. Peters & Peacock
were adjudged bankrupts. The [tlaintiffs jn-oposcd to
CASES IN CHANCERY,
77
prove for a sum of 349/. 3.v. 8rf., the alleged balance of
their debt, but they were allowed to prove for a 8uiii of
173/. 13*. Id. only. On the margin of the deposition the
following note was written with the concurrence, as was
alleged, of Mr. Thomas House A\^atson, the solicitor of
the bankruptcy, and in the presence of Mr. House, the
trade assignee, and signed by Mr. Evans, the Commis-
sioner: — "Proof allowed for 173/. 13*. Id, the difference
of 155/., and 20/. 10*. being given credit for in respect of
three inortorages on three boats named The Five G'*, The
Six B'sy and The Rapidj held by Messrs. Lacon & Com-.
pany, and for expenses of sale. J. Evans, Commissioner,
29th May, 1859."
The plaintiffs alleged that they applied to the Custom-
house Commissioners at Lowestoft on the 8th of July,
1861, to have their names placed on the register as
transferees of the mortgages ot the three boats, but they
were informed that, as the registered mortgagees had
become bankrupt, and the transfer to the plaintiffs had
not been executed prior to the act of bankruptcy, the
plaintiffs' equitable title could not be recognised, as the
mortg£^es could only be dealt with by the mortgagees.
The bill alleged that on the 7th of January last the
plaintiffs learnt that the defendant Liffcn had advertised
for sale the boat called The Six B's, and also the wreck
and materials of The Five G's, and this bill was originally
filed for an injunction to restrain the sale. The injunc-
tion was granted, ex parte, in January.
On the 24th of April the assignees of Messrs. Peters
& Peacock commenced an action against the plaintiffs.
The declaration contained two counts, by the first of
which the defendants claimed 1000/. damages for the
execution under the bill of sale of the 22d December,
1858, and by the second damages for the detention of
the mortgage securities.
The bill, as amended, prayed for an injunction to
restrain the action, and for a declaration that the execu-
486-2.
La CON
V.
LiFPEN.
Statement
78
CASES IN CHANCERY.
Statement,
186Q. tion by Messrs. Peters & Peacock of the bill of sale of
the 22d December, 1858, was not an act of bank-
ruptcy; that the plaintiffs had a Hen on the boats in
respect of the equitable deposit of the securities with
them ; and that the assignees might be directed to join
in proper transfers of the securities, so that the same
might be duly registered, &c.
In June, 1862, the plaintiffs moved for and obtained
an injunction to restrain the action.
The cause now came on for hearing.
Argument, Mr. Malins and Mr. W. IL Bennett for the plaintiffs.
The plaintiffs became transferees by deposit of the
mortgages of certain fishing boats. They held the deeds,
and their title was therefore complete in this Court. It
was said, however, that, inasmuch as the subject matter
of the mortgages was ships, no court of law or equity
could recognise any interest in ships that did not appear
on the register in pursuance of the Merchant Shipping
Act, 1854, section 37 ; and the case of The Liverpool
Borough Bank v. Turner (a) would be cited in support of
that view ; but that case was decided before the passing
of the Merchant Shipping Amendment Act, 25 & 26
Vic. c. 63, which provided, in section 3 (J), that eqiiities
(a) 1 Joh. k. Hem. 159.
(2>) The 3d section is qb follows :
— " It is hereby declared that the
expression " Beneficial interest *^
wherever used in the second part
of the principal Act (1854) in-
cludes interests arising* under con-
tract, and other equitable interests,
and the intention of the said Act
is that, without prejudice to the
provisions contained in the said
Act for preventing notice of trusts
from being: entered in the register-
book or received by the Registrar,
and without prejudice to the
powers of disposition and of giving
receipts conferred by the said Act
on registered owners and mort-
gfagees, and without prejudice to
the provisions contained in the
raid Act relating to the exclusion
of unqualified persona from the
ownership of British ships, equi-
ties may be enforced against
owners and mortgagees of ships
in respect of their personal in-
terest therein in the same manner
as equities may be enforced
against them in respect of any
other property."
CASES IN CHANCERT.
might be enforced against the owners and mortgagees of
sliijw («).
It followed, then, that the plaintiffs' interest was one
which this Court was bound to recognise ; but it would
be next contended that the property was within the order
and disposition of the bankrupts. Xow, what were the
facts ? The deeds were deposited with the plaintiffs by
the bankrupts with an undertaking to execute a formal
transfer, which they or one of them subsequently refused
to execute, but the bankrupts could not have executed
any transfer to any other than the plaintiffs, because the
imperative form of transfer referred to by the Merchant
Shipping Act, I8j4, fomn K., was by indorsement (i).
This brought the case within the late decision of Morris
V. Cannan (not reiK)rted).
In this case the bankrupts had promised to execute a
legal transfer, and on the faith of that promise had ob-
tained an advance. It was submitted that under such
circumstances the security was valid. In Pye v. Dau-
buz (c), where the facts were nearly the same, the as-
signees were ordered to pay the mortgage debt, or to
convey the estate to the mortgagee. \Jones v. Gibbons (d)
was also cited.] In Ex parte Langston{e) it was held that
79
1862.
(o) On the quefltion of equitable
mortgages of ships see De Mattos
V. Gibson^ 1 J. & H. 79 ; Euro-
pean ij* Australian Royal Mail
Company Limited v. lioyal Mail
Steam Company, 4 K. & J. G70.
(ft) 17 k 18 Vic. c. 104, 8. 51.
Every bill of snle for the transfer
of ony registered ship, or of any
9hare therein, when duly executed
shall be produced to the registrar
of the port at which the ship
is registered, together with the
declaration hereinbefore required
to be made by a transferee, and
the Registrar ^hall thereupon
enter in the register-book the
name of the transferee as owner
of the ship or share comprised
in such bill of sale, and shall in-
dorse on the bill of sale the fact
of such entry having been made,
with the date and hour thereof,
and all bills of sale on ony ship
or shares in a ship shall be entered
in the iregister-book in the order
of their production to the Regis-
trar.
(c) 2 Dick. 759.
{d) 9 Ves. 407.
{€) 17 Ves. 227; s.c. 1 Rose,
B. C. 26.
A rgument.
80
1802.
Lacon
o.
LiFFCN.
Argument,
CASES IN CHANCER!.
an equitable mortgage by deposit of deeds covered sub-
sequent advances, upon evidence that they were made on
that security. With regard to the bill of sale, it was
contended that it was given to secure a present advance
as well as an antecedent debt, and was not therefore in-
valid. In Hutton v. Cnttwell{a) it was held that, in order
to make the bill of sale an act of bankruptcy, it must
have been executed to defeat the creditors, which was
not in this case pretended : Jiittlestone v. Cooke {b) and
PFIiitmore v. Claridffe{c).
l^De Hahn v. Hartley {d) was also cited.]
On these grounds it was submitted that the plaintiffs'
title could not be impeached, either to the proceeds of
the bill of sale or to the ships comprised in the transfer
of mortgage.
Mr. Bacon and Mr. G, L, Riissell for the assignees. —
The real question was whether the beneficial interest in
these ships must not be taken to have been in the order
and disposition of the bankrupt. Under the old law it
was clear that the Court could only look at the register
to find the owner. In Follett v. I>elant/{e), where the
bill alleged that the defendant had fraudulently caused
himself to be registered as the owner, it was held on
demurrer that the Court could not interfere. The Mer-
chant Shipping Amendment Act merely said that equi-
table interests were to be regarded by the Court, but it
did not say that, ujion bankruptcy, the beneficial interest
was not ostensibly in the assignees of the bankrupt.
There was no analogy between this case and that of
Morris v. Cannan. In that case the ground of the deci-
sion was that any one by inquiring at the office might
have ascertained that the shares had been sold ; but here
(a) 1 Ell. & B. 15.
ib) G IHd. -290.
(c) 31 L.J.N. 8.141.
(d) 1 T. Rep. 343.
(€) 2 De G. & Sm. 035.
CASES IX CHANCERY.
81
the inspection of the register would have led to the
opposite concluBion. It was clear that this property was
in the order and disi^sition of the bankrupt, and passed
to the assignees.
But, further, by the 3rd section of the Act of 1862
the power given to registered mortgagees by the 43rd and
66th sections of the Act of 1854 was reserved ; and, if
so, the bankrupts, although they had deposited their title
deeds, had a power of disposition over the subject matter
of the mortgage ; which was, therefore, within their order
and disposition.
On the second question, viz., as to the bill of sale, it
was proved by the evidence that it was given to seciu*e an
antecedent debt as well as a present advance, and was
therefore void. [^Graham v. Chapman (/), Ex parte
Sparrow (A), Smith v. Cannan (/), Oriental Bank v. Cofc-
man (»i), were also cited.]
1802.
Laco.v
V.
LiPPKK.
Argument,
Mr. Malins was heard in reply.
The Vice-chancellor:— Judgment.
The first question in this case is as to the validity
of the lien claimed by the plaintiflFs in respect of the
deposit of the two instruments of mortgage on certain
ships. It appears that the bankrupts were the regis-
tered mortgagees of the ships in question, and that
the deposit of the instruments of mortgage was made to
secure the plaintiffs' debt before the act of bankruptcy.
For the assignees it was argued that, according 1o the
Merchant Shipping Act of 1854, as construed by this
Court in the case of The Liverpool Borough Bank v.
Turnery no equitable lien by deposit of the instrument of
mortgage can be recognised as valid, and that registration
is necessary to ^ve any valid title.
(i) 12 C. B. 85.
(*) 2 De G. M. k G. ©07.
VOL. IV.
(/) 2 Ell. k B. 35.
(w) 3Giff. 11.
82
CASES IN CHANCERY.
Judgment,
In the present case no assignment of the mortgage was
executed by the bankrupts to the plaintiffs or appeared
on the register. It was therefore insisted that the bank-
rupts, as the registered mortgagees, had the mortgages in
their order and disposition at the time of the act of
bankruptcy.
The plaintiffs, however, referred to the Merchant Ship-
ping Act of last session (1862) as expressly declaring
that interests under contracts and other equitable interests
must be recognised as included in the words " beneficial
interest'' in the Act of 1854. To this the assignees re-
plied, that the qualifying words in the 3rd section of the
Act of 1862 reserved the power of disposition to regis-
tered mortgagees given by the 43rd and 66th sections of
the Act of 1854; and therefore that the bankrupts, as
registered mortgagees, although they had deposited the
instruments of mortgage, still had a power of disposition,
and might have executed a valid assignment of the mort-
gages, notwithstanding the deposit.
But, on referring to the provisions of the Act of 1854
as to the disposition or transfer of mortgages, it appears
that the statutory form of assignment can only be exe-
cuted by indorsement on the instrument of mortgage.
The words of the form of transfer in schedule K, referred
to in the 73rd section of the Act of 1854, seem to be con-
clusive on this subject as they include the words *' the
within^'Written security." So that, without the production
of the original instrument of mortgage, no valid assign-
ment or disposition could be made. The deposit of the
original mortgage with the plaintiffs seems, therefore, to
have taken from the bankrupts the power of making any
effectual disposition or transfer of the mortgage, and thus
that deposit constitutes the plaintiffs equitable mortgagees,
who have a valid security in the ships.
So far, therefore, as the bill prays for a declaration that
the plaintiffs have a lien on the proceeds of the ships.
CASES IN CHANCERY.
83
they are entitled to a decree to that effect, together with
the costs of the suit as to that part of the case.
But as to the second question, which involves the con-
sideration of the validity of the bill of sale, the plaintiffs
have failed. In the case of Bittlestone v. Cooke [a), it was
held that where a bill of sale of all a trader's goods is in
part for a byegone debt, it is an act of bankruptcy ; and
the Court referred to the cases of Graham v, Chap^
man(b) and Smith v. Cannan(c) as authorities on this
point. It must, I think, be considered that the law is so
settled. The case of Hutton v. Cruticellid) was decided
on the ground that the bill of sale was executed to secure
a present advance of money made on the faith of that
security; and not as to any part of it for an old debt,
because the gross amount secured by the deed was ad-
vanced at the time by the creditor to whom the bill of
sale was executed. In the present case the bill of sale is
expressly given as a security for the whole debt, and also
for future advances. It seems, therefore, to be within
the decided cases* It is an act of bankruptcy in itself,
and the bill must be dismissed with costs so far as relates
to the bill of sale.
An attempt was made on the part of the plaintiffs to
support the bill of sale on the ground that the assignees
were bound to admit it by reason of a memorandum
signed by the commissioner in the margin of the affidavit
of proof of the plaintiff^s debt. But no such point is
raised by allegations in the bill, or by the prayer ; and if
it had been raised, neither the terms of the memorandum
nor the evidence seem to establish with sufficient clear-
ness that there was any agreement which bound the assig-
nees to admit the validity of the bill of sale. Therefore,
upon the whole, as to the equitable lien claimed by the
plaintiffs on the proceeds of the ships, there must be a
(a) 6 EU. k B. 807. (c) 2 Ell. k B. 36.
{b) 12 C. B. 85. {d) 1 £11. k B. 15.
G 2
1862.
Judgment,
84
1802.
Judgment,
CASES IN CHANCERY.
decree in favour of the plaintiffs with costs ; and the bill,
so far as it seeks^relief in respect of the bill of sale, must
be dismissed with costs.
The injunction restraining the defendants from impeach-
ing at law the bill of sale was then dissolved, and the bill
dismissed against the defendant LiiTen without costs.
Nov.B.
A suitor wrote
to the mother
of the young
lady as fol-
lows:—"If
your daughter
has or may
have money,
my wish and
intention
would be that
it should be
settled for her
sole and sepa-
rate use."
Consent to the
marriage
having been
given, in the
faith that the
intention thus
expressed
would be
fulfilled, and
the marriage
having taken
effect without
a settlement,
the Court
ordered the
wife's pro-
perty to be
settled in the
usual way,
and the costs
of the suit and
ALT V. ALT.
Un the 21st of February, 1862, the defendant addressed
a letter to the mother of the plaintiff, then seventeen
years of age, which contained the following passage : —
<e* # # J ^yj^g gQ charmcd, so led away, that I was
obliged to confess this, and my confidant exerted her
influence so effectually that I received another invitation
from Mrs. Crockford, which I attended last night, and
that has led to my writing this letter, and I know that
until I receive an answer I shall be unfit for anything.
** I therefore, through yourself, offer my hand and
heart to your daughter, promising that should there be
any compact between us, an understanding, an engage-
ment, or that most solemn of ties, an eventual marriage^
that it will at all times be my endeavour to do all I can
for her happiness."
After a statement of his connections and prospects the
writer proceeded thus : —
^^ I can safely say that I have enough to maintain a
wife upon.
*' If your daughter has or may have money my wish
of the settlement to be paid out of the fund.
f.
Alt.
Statement.
CASES I.N CHANCERY. 85
and intention would be that it should be settled for her 1862.
sole and entire use." alt
A bill was filed by the wife, by her next friend, pray-
for a settlement ; the 3rd, 4th, and 5th paragraphs of the
bill were as follows : —
The plaintiff's mother agreed to the proposals contained
in the said letter, and, on the faith and in the belief that
a good and valid settlement would be made of all the
property to which the plaintiff was or might become
entitled as offered by the defendant in his said letter, she
consented to a marriage between the plaintiff and defen-
dant, but desired that such marriage should be ])ostponed
until the plaintiff attained the age of eighteen years.
The defendant accordingly proposed to and was ac-
cepted by the plwntiff, and on the 15th day of August,
1862, although the plaintiff had not then attained the
age of eighteen years, the plaintiff and defendant were
married at St. Pancras Church, in the parish of St.
Pancras, in the county of Middlesex, by licence, without
the knowledge of the said Mary Ann Hannah Harbord,
and without any settlement of the plaintiff's property,
or any other settlement being made on such marriage.
Applications have been made on behalf of the plaintiff
by the said Mary Ann Ilannali Harbord to the defendant
to make and execute a valid settlement of all the property
to which the plaintiff is or may become entitled pursuant
to the terms of his aforesaid letter, but the defendant
refuses or neglects so to do, and he alleges that the afore-
said letter is not a binding agreement on him to make
such settlement, and that, even if it be binding on him,
it is not sufficiently explicit in its terms to enable him
to make a settlement which, if executed after marriage,
would be binding and effectual.
The plaintiff submits that the defendant is bound by
the aforesaid letter and the acceptance by the plaintiff's
mother, the said Mary Ann Hannah Harbord, of the
86
1862.
Alt
V,
Alt.
Statement.
OASES IN CHANCERY.
offers thereby made, and that a proper settlement ought
now to be made under the direction of this Honourable
Court of all the present and future property of the
plaintiff in such manner and upon such trusts as is and
are usual in settlements of the wife's property.
The bill alleged that the plaintiff was entitled to a
sum of 5000/., part of a sum of 8499/. 55. 4rf. Bank
Annuities, and the residue of the sum of 8499/. 5s. 4rf.
subject to her mother's life, and to certain real property
in Norfolk.
The bill prayed as follows : —
That it may be declared that the aforesaid letter of
the defendant dated the 2l8t day of February, 1862,
and the acceptance by the plaintiff's mother the said
Mary Ann Hannah Harbord of the offers made therein
by the defendant, constitute a binding agreement on the
defendant to make a proper settlement of all the property
to which the plaintiff is or may become entitled : And
that the defendant may be decreed to make such settle-
ment accordingly : And that a proper deed or deeds for
that purpose may be settled and approved by this
Honourable Court: And that the defendant may be
decreed to execute the same.
Or else that it may be declared that the plaintiff is
entitled in equity to have a proper settlement made upon
her and her children of all the plaintiff's present and
future property : And that the defendant may be decreed
to make and execute such settlement thereof as this
Honourable Court sliall direct.
Argument. Mr. Dickinson^ for the bill, submitted that the marriage
took place on the faith of the promise expressed in the
letter of the 21st February, and that in the eye of this
Court such letter constituted an agreement, binding on
tlie husband.
Mr. Shebbearcy for the husband, contended that there
CASES IK CHANCERY. 87
wa« nothing in the letter to bind the husband ; at the 1B62.
same time he was quite willing to submit to any order alt
the Court might make.
Alt.
The Vice-chancellor:— Judg^mnt.
It is clear that the marriage took place on the faith of
the promise expressed in this letter to settle the whole of
the young lady's property, present and future, for her
separate use. The defendant is, therefore, as much bound
in the eye of this Court as if he had executed a settlement
containing such stipulations. There must be the usual
reference to approve of a settlement having regard to the
letter. The costs of the settlement and of the suit to be
paid out of the fund.
Re SHUTTLEWORTH'S ESTATE" ACT;
BLACKBURN RAILAVAY AMALGAMA-
TION ACT; LANCASHIRE AND YORK-
SHIRE RAILWAY, AND THE LANDS
CLAUSES CONSOLIDATION ACT. Nov.m.
OY an Act of Parliament in the 3 & 4 Vict. c. 25, where land
certain i^arts of the estates devised by the will of Robert a raih^ay ^
Shuttleworth, Esq., deceased, were vested in certain company
^ , ^ ^ under the
trustees for sale, and for authorising grants in fee and compulsory
,.,,., n ii powers of their
buuuing leases, and other purposes. own Acts, with
The 4th section of the Act enacted that all sums of "^^ JJj^^^^
money arising from sale should, until reinvestment. Consolidation
•^ ^ Act was incor-
porated— Heldf that under the SOth section of the latter Act the company were bound to
pay the costs of the petition for interim investment.
88
1862.
Jle SlIUTTLK-
WORTU'8
EsTATK Act,
Blackburn
Railway,
&c., Act,
Lancashire
AND York-
shire, AND
Lands
Clauses
Consolida-
tion Act.
Statement*
CASES IN CHANCERY,
" from time to time be laid out in the purchase of Ex-
chcfiuer Bills ;" it was further provided that it should be
lawful for the Court of Chancery to make such order
or orders that, whenever the Exchequer Bills should be
in the course of payment by Government and new Ex-
chequer Bills issued, such new bills might be received or
exchanged, &c., all which P^xchequer Bills, whether
purchased or exchanged, should be deposited in the Bank
of England in the name of the Accountant-General, to
be placed to his account there "jElr parte the purchaser
or purchasers of the estates of Robert Shuttleworth,
deceased," until a proper purchase should be found ; and
until the same should, upon petition to the court by the
person or persons entitled to the possession or the receipt
of the rents and profits of the lands to be purchased, be
ordered to be sold by the Accountant-General, for com-
pleting such purchase or purchases, in such manner as
the Court should think just and direct.
The 14th section empowered the trustees from time to
time, out of the moneys which should come to their
hands, to reimburse themselves all costs, charges, damages
and expenses; and the 15th section enacted that it should
be lawful for the Court of Chancery from time to time
to make such order as to the Court should seem fit, for
taxing and settling all the costs, charges, and expenses
which had been or might be incurircd in preparing and
obtaining the Act, and in making the several applications
to the Court in pursuance thereof, and in making and
completing the sale or respective sales of the heredita-
ments thereby made saleable, and the costs, charges, and
expenses of taking the moneys out of the Bank and
investing the same in new purchases as aforesaid, or
otherwise in carrying the trusts and purposes of the Act
into complete execution, and also for the payment of all
such costs, charges, and expenses as aforesaid, out of any
of the moneys arising under that Act, or by sale of Con-
CASES IN CHANCERY.
sols therein mentioned, or out of the money arising by
sale of the Exchequer Bills, so to be purchased as afore-
said, and that it should be lawful for the said Court of
Chancery from time to time to make such further order
or orders touching the said moneys or in relation to the
premises as the same Court should think fit.
The Blackburn Railway Company and the Lancashire
and Yorkshire Railway Company had each, under the
powers contained in the Lands Clauses Act, taken part
of the lands the subject of settlement ; but it was found
that the lands could be sold only under the powers of the
Shuttleworth Estate Act. The purchase-moneys had
been psud into the Bank to the credit of the above-men-
tioned account.
This petition was presented by the tenant for life, the
trustees of his marriage settlement, and the trustees
appointed under the private Act, praying that the pur-
chase-moneys might be invested in the purchase of Ex-
chequer bills under the provisions of the private Act.
The petition also prayed that the costs of the application
might be paid by the company.
89
l?c Shuttle-
worth's
Est AT K Act,
Dlackruhn
Railway,
&c., Act,
Lancashire
AND York-
shirk, AND
Lands
Clauses
Consolida-
tion Act.
Statement.
Mr. Kay appeared for the petitioners, and asked that
the companies might be ordered to pay the costs of the
petition in pursuance of the 80th section of the Lands
Clauses Consolidation Act.
Argument,
Mr. Pole, on behalf of the company, contended that
the purchase had been effected under the provisions of
the private Act, which governed the whole of the pro-
ceedings both as to the sale and as to the investment.
The case was clear, therefore, of the Lands Clauses Con-
Folidation Act ; and if so, the costs of the investment must
be defrayed in the manner pointed out in the private Act.
The Vice-Chancellor said, that the companies' right Judgmmt.
90
CASES IN CHANCERY.
1662.
Re Shuttle-
worth's
EsTATK Act,
Blackburn
Railway,
&c.. Act,
Lancashire
AND York-
shire, AND
Lands
Clauses
Consolida-
tion Act.
Judgvunt.
to take the land depended on their own Acts of Parlia-
ment, of which the Lands Clauses Act formed a part
It seemed, therefore, that the cost of the investment of
the money paid into court fell witlun the provisions of
the 80th section of the Lands Clauses Act, and must be
paid by the companies.
Nov. 16, 17.
Where a sub-
purchaser, at
an improved
price, applied
by summons
to be substi-
tuted in the
place of his
vendor (the
original pur-
chaser), who
resisted the
application,
the Court
refused to
make the
order, but, at
the suggestion
of the trustees,
ordered a
resale, on the
terms that the
original pur-
chaser pay the
improved
price into
court.
Re THE SETTLED ESTATES ACTS,
1854 AND 1856.
\Jn the 2nd September, 1862, Captain James A.
Legard, of West Cowes, E.N., obtained a summons
against Charles William HofFmeister, that he might be
substituted as the purchaser of property at West Cowes,
in the Isle of Wight, in the. place of Charles William
Iloffmeister, Esq., who was declared the best bidder for,
and the purchaser, of certain several lots of land at a sale
which took place under the direction of the Court on the
15 til of August last.
At the sale Mr. HofFmeister was declared the purchaser
of various lots for sums amounting in the whole to the
sum of 3095/. On the 25th August Captain Legard
entered into an agreement with Mr. Hoffmeister for the
purchase of his contract on payment of 500/. in addition
to the above-mentioned sum. The agreement, which was
in writing, was as follows : —
" Captain Legard and my father have agreed that the
estate West Cliff (the whole purchased by my father at
the sale) should be assigned to Captain Legard, in con-
CASES IN CHANCERY. 91
sideration of his payin|r the sum of 500/. on completion 1882.
of the purchase. We are desirous that Captain Legard Be Thb
should, if possible, take his title direct from the Court of bstatebTcts
Chancery without Mr. Hoffmeister's name appearing; 1854 & iS6e.
but if this cannot be carried out, then Captain Legard stai$mmt.
and Mr. Hofimeister to bear the expense of an assignment
from, Mr. Hofimeister to Captain Legard jointly.
" W. C. HoFFMEiSTER (for C W. Hoffincister).
** George Prothero (for Captain Legard, of
Grove House).
" Aug. 25, 1862."
This sub-contract was entered into by Mr. Hofimeister
and Captain Legard in ignorance of the rule regulating
sales under the order of this Court, that a sale of pro-
perty under the Court does not become absolute till
eight days after the chief clerk's certificate has been
filed. [See Dewell v. Tufnell'] (a). Captain Legard
subsequently, on consulting his solicitor, ascertained that
the contract was an infringement of this rule, and that he
could not safely pay the improved price to Mr. Hofi"-
meister.
Mr. Fortune, who was Mr. Hoffmeister's town solicitor,
deposed that Mr. Williamson, Captain Legard's solicitor,
at an interview mentioned the above arrangement to
him, and asked him whether he would undertake to in-
demnify Captain Legard against this risk of having to
pay the 500/. over again and into court. This the
deponent, on the part of Mr. Hofimeister, declined.
Mr. Clark, the auctioneer who sold the property, de-
posed, " that at the sale the first bidding was made by
Captain Legard for 1800/., and that the succeeding
biddings were chiefiy by Mr. Hofimeister and Captain
Legard, and that the bidding previously to that at which
(a) 1 K. & T. 334.
92 CASES IN CHANCERY.
18G2. the lots were knocked down, namely, the sura of 2700/.,
Re The was made by Captain Legard. Before knocking down
EsTrxEsAcTs ^^^s® ^^^> ^ g*^® Captain Legard ample time to bid
1854 & 186G. further — more than the usual time — and repeatedly urged
statement, him to advance upon the bidding, pointing out to liini
that the property must be worth more to him than a
stranger, and assuring Iiim, over and over again, that the
property Avas absolutely sold at the fall of my hammer ;
but he declined any furtlier contest."
On the 29th September Mr. Fortune wrote to Mr.
Williamson, proposing a reference to determine whether
Mr. Hoffmeister or Captain Legard should be the pur-
chaser at the sum of 3595/., and who should bear the
costs, including those of the vendor. He said, ** The
question is to be treated not as one of law or practice,
as to which there can be no doubt, but solely as one
between gentlemen who wish to act towards each other
fairly and honourably.*' Messrs. Williamson replied on
the 4th October that they must advise their client to
decline the proposition. That the matter was to be
considered as one not of law, was entirely out of the
question. It was the rule of law in these cases, and
nothing else, that prevented Captain Legard from carry-
ing out the agreement with Mr. Hoffineister in the way
intended by both parties. That the agreement in ques-
tion, according to the authorities, was an agreement
which enured for the benefit of the estate, and the judge
was the fittest person to determine that point. If tlie
vendors were content with the price named, there was
nothing to determine.
To tliis Messrs. Smith and Fortune replied, on the 4th
of October, " It is admitted that the purchase-money
must be 3595/., and therefore there is no question of law
on which the Vice-Chancellor, or any one else, need be
troubled. AVe have no doubt both the vendors and the
chief clerk will be satisfied." In reply Messrs. William-
CASES IN CHANCERY.
93
son wrote on the 8th, " We must adhere to the course
mentioned in our former Icttef, and take the Vice-Chan-
cellor's opinion on the whole case."
186*2.
Re The
Sktti«bd
EsTATBs Acts
Upon the occasion of settling the draft certificate of l^* * ^^56.
sale, on the 22nd August, in which Mr. lioffineister Statement.
was certified as purchaser for 3095/., Mr. Williamson,
being present, expressed to Mr. Fortune Captain Legard's
intention of applying to open the biddings at an advance
of 300/. Mr. Fortune said he was thereupon instructed
by Mr. Hoffmeister to offer, in that event, an increase to
the amount of 350/.
Captain Legard was in possession of one of the houses
forming part of the property sold, under a tenancy for
three years commencing in the autumn of 1860. He
deposed that, being under a firm conviction that he was
also to have, at the end of the term, a right of pre-emption
from the trustees, under his agreement, he suffered him-
self to be outbid at the sale, before the biddings had
reached the price he intended to give.
Mr. Hoffmeister, by his counsel at the bar, expressed
his willingness to pay the improved price into court for
the benefit of the estate.
Mr. Bacon and Mr. Robson for the motion. — The rule Argument,
of this Court is that where, before the purchase made under
the sanction of this Court is confirmed, the purchaser
makes a subsale, the purchaser from him stands in the
place of his immediate vendor. In Hodder v. Ruffin (a),
the purchaser having resold with a profit, the Court
ordered the substituted purchaser to pay the additional
purchase-money into court. The substituted purchaser
was subject to the liabilities, and was therefore entitled
to all the rights which the original purchaser had under
the contract. This was so well settled that, according
to the ordinary practice, a purchaser under the Court
(a) Tain. 341.
94 CASES IN CHANCERY.
1862. was not discharged, even on payment of the money,
^Tthb without an affidavit that there was no under-bargain,
Settled Rinhy V. M'Namara (a\ But further, where on a re-
ESTATESACTS •^ ^ ^ ^
1854 & 1856. sale the property does not produce the improved price,
Argwrnent. the Court will hold the sub-purchaser responsible for
that amount: Holroyd v. Wyatt{b). [Daniel's Chancery
Practice, 1208; and Sug. V. & P. 13th ed. 78, were
also cited. See also Morice v. Bishop of Durham (c).]
Mr. Malins and Mr. CaBson for the original purchaser. —
Whatever the Court might do to prevent any loss to the
estate, it was quite clear that where the original purchaser
was willing (as here) to pay the improved price, this Court
would not deprive him of his rights under the contraot.
Mr. HoflTmeister had not been guilty of any improper
conduct ; in ignorance of the rule that he could not make
a binding contract before his purchase was confirmed, he
had agreed to sell, but that was no reason for this Court
depriving him of his rights under the purchase. There
was no case which laid down any such principle as that
the mere subsale ousted the original purchaser. It was
submitted therefore, that the motion must be refused
with costs.
Mr. Craig and Mr. •/. N. Higgim for the vendors^ the
trustees, asked for a resale.
Judgment. The ViCE-ChANCELLOR : —
No authority has been cited, and I believe none can be
found, to show that a sub-purchaser is entitled, against the
will of the original purchaser, aud without the consent of
the vendors, to stand in the place of the original pur-
chaser.
The Court, without consent, has no jurisdiction over
any contract that may have been entered into between
(a) 6 Ves. 515. (J) 2 CoU. 327. (c) 11 Ves. 57.
CASES IN CHANCERY. 95
Mr. HofFmeister and Captain Legard^ nor can it interfere 1B62.
with any remedy which Captain Legard may have j^e The
against Mr. Hoffinei8ter. EsTrxlsToxs
When tlie Court interferes on these occasions^ it is i*^^ * 1866.
generally on the application of the vendor, and invari- Judgment.
ahly with the consent of the purchaser.
The Court has one plain duty to discharge, which is,
that the estate should be sold for tlie best price that can
be secured consistently with justice to all parties con-
cerned. It appears that 3093/. has been already secured,
but, in consequence of this dispute, both of the com-
petitors are willing to advance on that sum 500/. In
this state of things Mr. Iloffmcister, the original
purchaser, insists on retaining the estate at that increased
price. All that the vendors ask is that the estate may
be again put up for sale. The result is that no order can
be made on Captain Legard's application except that the
vendors' costs must be paid, as between solicitor and
client, out of the fund. There must be a resale upon
terms, and in order to secure the highest price it must be
on the terms that 500/. be paid into court by Mr. Hoff-
meister in addition to his former bidding):.
9G CASES IN CHANCERY.
PATCH f, AVAllD.
Deraun-er to a 1 HIS was a demurrer. The bill alleged that from the
dempUon'»fter y^^^ ^^'^^ *^ ^^^® *® plaintiff was a builder, carrying on
a foreclosure business at Notting Hill and Paddington, and the defend-
decree, which *^ . , . ,
the bill asked ant acted as his solicitor during that period.
Mtooneo/ The plaintiff, in the beginning of the year 1843, had
^wiiestothe ^^^^^^^^ various leases, and agreements for leases of
decree, building land, and he in that year applied to the defendant
cojts, and to procure him advances of money, which he required for
refuse^.**"^"^ erecting and completing the houses and buildings thereon ;
and the defendant undertook and agreed to advance or
procure clients of his own to advance the various sums of
money which the plaintiff required, and it was arranged
by the defendant that the sums required were to be ad-
vanced from time to time by instalments, as the erection
of the houses and buildings proceeded. The total sums
expressed to be advanced were from time to time secured
by mortgages upon the different houses for specific sums
of money, but the amounts expressed to be secured by
such mortgages w^re not in fact advanced at the date of
such mortgages, but were made up by sums advanced
from time to time as aforesaid, and of sums wliich
were deducted and retained by the defendant as and for
the amount of interest upon the said mortgage debts, and
of gross sums for costs and commissions which the defend-
ant claimed to be due to him in respect of the various
mortgage transactions in which the plaintiff was mort-
gagor.
The aggregate sums agreed to be raised on the mort-
gage were about 20,000/.
Throughout the whole of the said transactions the
defendant was employed as and acted as sole solicitor and
CASES IN CHANCERY,
97
sole legal adyiser of the plaintiff, and transacted and
charged the plaintiff for all legal business done in con-
nection with the said mortgages^ as well as large sums for
commissions. The plaintiff had full confidence in the
defendant, and, having his whole time occupied by atten-
tion to his own business, and in the erections of the
yarious houses aforesaid, the plaintiff was compelled to
leave, and in fact left, all matters of business relating to
the said several mortgaged premises entirely in the hands
of the defendant as his confidential solicitor. The plaintiff
had great confidence in the defendant, and the plaintiff
from time to time acquiesced in and assented to every-
thing suggested by the defendant, and acted under his
advice in all transactions and matters of business, and the
plaintiff from time to time executed and signed such
mortgages, charges, accounts, and other documents as
were placed before him by the defendant for his signature
and execution, and, without examining or perusing the
same, or without the same being perused or investigated
on his behalf by any other person than the defendant
The mortgage transactions in which the plantiff and
defendant were engaged] upon the terms and in manner
aforesaid were numerous, and, from the manner in which
the monies agreed to be advanced by the defendant on
behalf of himself or his clients were advanced and paid to
the plaintiff, and from the manner in which the accounts of
sums advanced, interest on advances, commissions, and
costs were mixed up together by the defendant, it became
extremely difficult and ultimately almost impracticable
for the plaintiff to ascertain his exact position or his
liabilities, except as the result of careful investigation,
with full information supplied by the defendant ; and the
plaintiff had in fact no opportunity of testing the correct-
ness of the defendant's accounts and claims, or of ascer-
tidning whether the sums agreed to be advanced on each
mortgage security had been in fact duly and properly
VOL. IT. II
1S62.
Patch
V.
Ward.
Statement,
98
CASES IN CHANCERY.
186S.
Patch
V.
Ward.
Statement,
advanced to him, or otherwise duly applied or appro-
priated by the defendant.
The bill, after stating several mortgages, alleged that
by an indenture of mortgage dated the 4th of November,
1844, between the plaintiff and the defendant, in con-
sideration of the sum of 3000/. therein expressed to be
lent by Henry Ward to the plaintiff, and of such further
sums as AVard should actually lend to the plaintiff not
exceeding 5500/., the plaintiff granted and demised
certain land and eleven messuages thereon, and all the
premises comprised in a lease dated the 4th of November*
1844, for the then residue of the term of ninety-three
years and a quarter, wanting three [days, subject to re-
demption on payment of 3000/.
That by an indenture dated the 3rd of May, 1845,
indorsed on the deed of the 4th of November, 1844,
between Ward of the first part, plaintiff of the second
part, one C. G. Parsons of the third part, and Leaf and
Baily of the fourth part, reciting that 5500/. was due,
and should be paid off out of monies belonging to Leaf,
Ward, and Baily, and that the debt and securities should
be transferred to them, the same were then transferred
to G. C. Parsons, in trust for Leaf, Ward, and Baily,
and by an indenture, also indorsed on the mortgage deed,
and dated the 5th of May, 1845, the debt of 5500/. was
assigned to Parsons in trust for Leaf, Ward, and Baily,
That by an indenture dated the 10th of September, 1845,
between the plaintiff of the first part, and Vulliamy of
the second part, the plaintiff demised the same heredita-
ments, and the eleven messuages thereon, to Vulliamy,
and his executors, for the residue of the [term, less nine
days (subject to the mortgage debt for 6500/.) to secure
1000/.
In the latter part of the year 1846, and the beginning
of the year 1847, the plaintiff was engaged in erecting six
houses situate in Bishop's Koad, Paddington, upon build-
CASES IN CHANCERY.
ing ground of whioh the plaintiff had obtained long
leases, and the houses erecting thereon were of a very
large and valuable description, and the plaintiff was
desirous of obtaining an advance of the sum of 7200/.
upon the security thereof, and he applied to the defendant,
who, as the plaintiff's solicitor, and on the plaintifTs be-
half, negociated with the Law Fire Insurance Company
for an advance of the sum of 7200/. upon the security of
the said houses, which the said company agreed to make.
At this time, on account of the then state of the money
market, the plaintiff had found some difficulty in imme-
diately raising the funds required for carrying on very
extensive building operations in which he was engaged,
and as the defendant was well aware the plaintiff was in
such a situation, and that it was imperatively necessary
for him to carry out the said mortgage transactions
immediately at any sacrifice.
The defendant, as hereinbefore stated, held all the
plaintiff's title deeds, leases, papers, and documents, as
well those comprised in mortgage securities as others, and
before the completion of the said mortgage for the sum of
7200/. the defendant set up a claim for bills of costs and
commissions, relative to various transactions in which he
had acted as the solicitor of the plaintiff and his mortga-
gees, including the defendant's own costs as mortgagee,
which bills of costs and commissions amounted, as the
defendant insisted, to the sum of 3000/. or thereabouts.
The said bills of costs were of a most unreasonable
amount, and contained no proper or detailed charges, but
consisted of several large gross sums of a most extrava-
gant amount; and the said bills of costs contained, in
addition to the charges for general business done, and all
the full costs for and in respect of the preparation and
execution of all the mortgage deeds and securities exe-
cuted by the plaintiff, charges of gross sums for attend-
ances in negociating the loan, amounting together to the
U 2
99
1S62.
Statement,
100
18G2.
Statement,
CASES IN CHANCERY.
sum of 650/., and also sums amounting to the sum of
230Z. and upwards, charged as and by way of commissions
in addition to the plaintiflf s bill of costs in respect of the
same mortgage securities.
The plaintiff was desirous that the defendant's accounts,
and the bill of costs claimed by him, should be gone into
and properly investigated, but the defendant objected to
this, and, after some discussion, he refused to proceed
with the mortgage to the Law Fire Insurance Company,
or to concur in the completion thereof, although the said
company were prepared with the money they were ready
to advance ; it had been agreed that 4300/,, part thereof,
was to be advanced immediately upon the execution of
the mortgage, and the plaintiff had made his arrange-
ments upon the footing of the said mortgage being forth-
with completed ; and the plaintiff, believing, as the fact
was, that the defendant held securities by way of mort-
gage and otherwise, for all that was properly due to him,
including all bills of costs, took possession of the six leases
of the said houses in Bishop's Road, in order to carry out
the mortgage through Messrs. Harrison & Beale, the
solicitors of the Law Fire Insurance Company, the in-
tended mortgagees, and requested them to proceed with
the mortgage, which they agreed to do, and the plaintiff
wrote to the defendant stating what he had done; and
the plaintiff and defendant subsequently met at the office
of the said Messrs. Harrison & Beale, and the plaintiff
then offered to allow the whole of the money agreed to
be advanced by the said insurance company to remain in
the hands of Mr. Harrison, and to authorize him to pay
therewith the amount found due to the defendant; the
defendant, however, refused this, and insisted that he had
a lien on the said leases ; and the defendant, in the be-
ginning of March, 1847, filed a bill in this Honourable
Court against the plaintiff, claiming a lien upon the said
leases, and praying an account of certain moneys, which
CASES IN CHANCERY.
101
he claimed to be due to him upon the accounts between
him and the plaintiff, and in respect of his said bill of
costs amounting to the before mentioned sums, and pray-
ing payment of what should be found due, and other
relief in respect thereof, and also praying an injunction
to restrain the plaintiff from parting with the said leases;
and the defendant obtained an ex parte injunction in the
said suit.
The defendant was well aware, and it is the fact, that
the plaintiff, from the necessity he was under of com-
pleting his buildings and works, was compelled at once
to carry out the said mortgage, and obtain the sum of
7200/. at any sacrifice to supply his pressing necessities,
and the defendant was well aware, as the fact was, that
by reason of the lien and claim insisted on by him the
plaintiff was unable to do so, and that the result of
resisting the claims and costs insisted on by the defendant
would, under the circumstances, have been inevitable
ruin to the plaintiff; and the defendant availed himself
of this pressure to dictate his own terms to the plaintiff.
The plaintiff upon being served with the said ex parte
injunction consulted Mr. Randall, who thenceforth acted
for him in the said suit, but found that the only mode of
investigating the defendant's accounts was by protracted
litigation, and the plaintiff was in consequence obliged
to submit to the defendant's terms.
The defendant thereupon delivered an account consist-
ing of a great many sheets purporting to be accounts of
all the various transactions between the plaintiff and the
defendant. Such accounts are very complicated and
involved, and included gross sums for costs, without any
details, and would have taken a very long time to analyse
and investigate. The defendant sent the documents on
some day of March, 1847, by a clerk to the said Mr.
Randall late in the evening of the day before the decree
hereinafter mentioned, and it was impossible for him to
1802.
Patch
V,
Wamd.
Statetnent,
102
CASES IN CHANCERY.
1868.
Patch
o,
Wabd.
Statement.
investigate the same^ and the defendant required the
plaintiff at once to submit to a decree in the said suit
upon the terms contained in a memorandum which the
defendant required the plaintiff to sign, and the plaintiff
accordingly on the 25th day of Mai'ch, 1847, without
any investigation of the said accounts, signed the said
memorandum at the foot of the said accounts. The said
memorandum was prepared by the defendant and was
signed by the plaintiff on the same day the accounts were
delivered. The said memorandum was intitled in the
said suit by the said defendant against the plaintiff, and
was as follows : —
'^ We hereby admit and acknowledge that the fore-
going accounts contained in seventeen double sheets of
paper are the accounts referred to by the pleadings and
the minutes of decree agreed to be taken in this cause;
that the same have been examined by the said defendant,
with Mr. Bandall, his solicitor; and the several bills of
costs therein referred to have been inspected and explained
to him by the said Mr. Randall; that the several sums
charged in such accounts as commission represent a total
amount of charges which the defendant hereby agrees to
allow to the plaintiff for business transacted in his
character of solicitor for the said defendant, for which
charges, as well as those set out in the defendant's answer,
no detailed bills, by express arrangement between the
plaintiff and the defendant, have been delivered; but such
charges, having been investigated «and reduced by the said
Mr. Bandall, are, together with the costs of this suit,
declared to be fair and reasonable charges; and it is ad-
mitted and declared that the various amounts entered on
the credit side of such accounts as having been advanced
to the said defendant Charles Patch on mortgage securi-
ties were duly paid to and received by the said defendant
on the respective days in the said several securitiea meo*
CASES IN CHANCERY.
tioned; that the sum of 4300/. as shown in the preceding
account is the balance remaining due to the plaintiff after
having allowed to the defendant the sum of 254/. 6^. 9rf.,
and for which sum of 4300/. the decree in this cause is
proposed to be taken. Dated this 23th day of March,
1847."
103
Statement,
The said Mr. Randall acted on the plaintiffs behalf in
the matter, but he had no opportunity of investigating
the accounts and costs and claims of the plaintiff, and
did not in fact investigate or examine the same, in conse-
quence of the defendant refusing to allow a proper oppor-
tunity of doing so; and pursuant to the said memorandum
a decree was on the same day of March, 1847, taken
in the said suit for the sum of 4300/., the amount men-
tioned therein. The said sum of 254/. 6*. 9rf. was a sum
named by the defendant to the said Mr. Randall as the
sum he would deduct from the total claims: it was not
the result of any investigation of the said accounts by
the plaintiff or the said Mr. Randall.
The mortgage transaction of the Law Life Assurance
Office was thereupon carried out, and out of the sum of
4300/. advanced upon such mortgage the sum of 2300/.,
part thereof, was received by the defendant, who required,
and the plaintiff executed, the mortgage security next
hereinafter stated for the balance of 2000/.
By an indenture dated the 1st day of April, 1847, and
made between the plaintiff Charles Patch of the one
part and the defendant Henry Ward of the other part,
after reciting, amongst other things, the lease and other
indentures hereinbefore stated, and the said suit, in con-
sideration of the said sum of 2000/., part of the said
balance of 4300/., the plaintiff covenanted with the
defendant Henry Ward to pay the sum of 2000/. and
interest at the rate of 5/. per cent, per annum on the
day of then next, and the plaintiff granted and
104
CASES IN CHAKCERY.
1802.
Patch
V.
Ward.
Statement.
demised, amongst other hereditaments, the said piece of
ground with the eleven several messuages or tenements
erected thereon, and all other the said premises demised by
tlie said hereinbefore stated lease unto the defendant Henry
AYard, his executors, administrators, and assigns, for all
the residue of the term of years except the last day
thereof, subject to the said mortgages of the 4th day of
November, 1844, and the 10th day of September, 1845,
and the said principal sums of 5500/. and 1000/. and
interest, and subject also to redemption on payment of
the said principal and interest moneys at the day men-
tioned in the said covenant for payment thereof; and in
the now stating indenture is contained a power of sale
in case of default.
Notwithstanding the said arrangement and submission
on the part of the plaintiff to the terms imposed by the
defendant, the defendant forwith commenced a series of
oppressive proceedings, in order, as the plaintiff charges,
to embarrass and ruin the plaintiff, and thereby to enable
the defendant to become the absolute owner of the said
eleven messuages and premises comprised in the said
mortgage securities hereinbefore stated, by foreclosing
the said mortgage, as the plaintiff now alleges has been
done under tlie circumstances and in manner hereinafter
stated.
On the 5th May, 1847, half a year's interest on the
mortgage debt of 5500/. became due, and the defendant
shortly afterwards called on the plaintiff to pay the
principal, though no interest but half a year's was due, or
any arrears on any of the mortgages, but the defendant
refused to accept tlie interest, alleging the plaintiff had
broken the covenants in the deeds.
In March and May, 1847, the defendant, on behalf of
himself and other mortgagees (except VuUiamy) instituted
suits in this court against the plaintiff to foreclose certain
mortgages, including those for 1200/. and 700/. The
plaintiff succeeded in paying off the two latter mortgages.
CASES IN CHANCERY.
105
On the 22tl of May, 1847, the defendant, in the name
of himself, Leaf, and Baily, filed a bill against the de-
fendant (originally alone) to foreclose the mortgage of
tlie 4th of November, 1844, for 5500/. VuUiamy was
afterwards added as a defendant by amendment. The
plaintiff was very anxious to avoid foreclosure, and raised
2000/., with which he psud off a mortgage of 1st April,
1847, for 2000/., believing if this sum were paid the
defendant would forbear to foreclose.
The plaintiff, in consequence of the commercial crisis
which then existed, found some difiiculty in raising the
amount required ; but before he could do so, at the end
of the month of September, the defendant, who acted
throughout for Lewis VuUiamy, the second mortgagee,
in the name of the said VuUiamy caused notices to be
served on the tenants occupying the eleven houses in
Queen's Road comprised in the mortgage security, for-
bidding them^to pay rent to the plaintiff, and requiring
them to pay the rents to one W. H. Stemp, who was the
defendant's clerk, as agent for VuUiamy. The said
Stemp, as agent for VuUiamy, from September or Octo-
ber, 1847, received the rents and profits until after the
16th March, 1849, when the final decree for foreclosure
was made.
The only interest due to VuUiamy at the date of the
notices on the 2l8t September, 1847, was half a year's
interest, which accrued on the 10th September, 1847,
amounting to 25/., less property tax. The rents which
accrued due on the 29th September, 1847 (eight days
afterwards), amounted to 165/., more than enough to
pay all the interest due to VuUiamy, and also to Leaf
the defendant, and Bailey, amounting altogether to
133/. 9*. Gd.y or thereabouts.
The plaintiff charges the several steps and proceedings
aforesaid were respectively taken by the defendant without
the privity, knowledge, or concurrence of the other mort-
18G2.
Patch
V,
Wakd.
Statement,
Ward.
Statement,
106 CASES IN CHANCERY.
1862. gngees, his clients, for whom he purported to act, and who
Patch 1©^ ^11 matters relating thereto to the defendant, who in
fact acted as and was in all practical purposes the sole
mortgagee of the said hereditaments and premises, and
the object of the defendant throughout the several trans-
actions was to deprive the plaintiff of all his available
resources, and to render it impossible for the plaintiff to
resist the foreclosure decree sought by the said suit insti-
tuted by Ward, and to enable the defendant to procure
absolute surrender of the said mortgaged property.
The defendant, by the means and proceedings aforesaid,
accomplished his object of effectually embarrassing the
plaintiff, and of depriving him of all resources, and the
plaintiff found himself entirely at the mercy of the de-
fendant, who was pressing on the said suit and proceedings
in the name of himself and the other mortgagees, and
the plaintiff, in consequence, in the month of May or
June, 1848, with his wife and children, sailed from
Southampton for America, without any means or re-
sources whatever, and continued to reside there until the
year 1860, when, having during that time succeeded in
saving a sufficient sum to enable him to return and pay
the debts due to his creditors, he in the month of August,
1860, returned to this country for that purpose, and at
once took steps to pay off and redeem the several mort-
gages held by different persons upon his property, in-
cluding the said before-mentioned mortgages upon the
the said eleven houses in Queen's Terrace, Queen's Road,
being ready and willing to redeem the same, and the
plaintiff employed a Mr. Woodard to act on his behalf,
who applied to the defendant for information upon the
subject, and offered to redeem the mortgaged property,
and pay all that was due upon the said mortgage securi-
ties. The defendant, however, alleged and he still alleges
that in the said suit a decree for foreclosure had been
obtained, and he claimed to be absolutely entitled to th«
CASES IN CHANCERY.
107
said mortgaged premises^ and he refused to give the
plaintiff any information with respect thereto ; this was
the first time the plaintiff became aware that the said
suit had been proceeded with as against him, or that it
was alleged by the defendant that a decree for foreclosure
had been obtained in the said suit. The said Mr. Randall
had appeared for the plaintiff in the said suit before the
plaintiff was compelled to leave England for America,
but, in consequence of plaintiff's difficulties, the said Mr.
Randall ceased to act as the plaintiff^s solicitor before the
plaintiff left England, and had communicated that fiict to
the defendant, and took no steps on behalf of the plaintiff
in the said suit.
The plaintiff, in consequence of the allegations of the
defendant, made inquiries,, and then, for the first time,
discovered that Vulliamy had been made a defendant by
amendment, and that the defendant had acted as his
solicitor; that the suit had been heard on the 11th May,
1848, and a decree taken, in the plaintiff's absence, for an
account ; that it had been referred to the Master to take
an account, and that the usual foreclosure decree had
been made.
Pursuant, as the defendant alleged, to the decree, the
Master made his report, dated the 16th June, 1848,
which found that the whole of the principal sum of 5500/.,
with interest at 5/. per annum, from the 14th May, 1847,
was due to the plaintiffs (in that suit) over their secu-
rities, and there was due to the plaintiff up to the
1st December, 1848, the sum of 5003/. 17^., which he
appointed Lewis Vulliamy to pay to the plaintiff on the
1st December, 1848.
The defendant alleged that the Master's report was
confirmed on the 3rd July, 1848, and that the sum of
5003/. 17*. was paid by Vulliamy on the 6th December,
1848, as provided for by the decree.
The plaintiff charges the said mortgage was not really
1S62.
Patch
V.
Ward.
Statement,
108
CASES IN CHANCERY.
1862.
Statement,
paid off, or, if the said sum of 5003/. 1/5., or any part of
it, was paid off, it was paid by the defendant out of his
own monies, and that the said VuUiamy paid no part of
it and took no part in the suit, and was ultimately paid
his principal and interest by the defendant.
In further pursuance of the decree, as the plaintiff
alleged, the Master made subsequent reports upon affi-
davits made by Stemp and Parsons, both clerks of the
defendant, whereby he found that 5003/. 17^. had been
paid, and that, after giving credit for the rents of the
mortgaged premises, received by Stemp and paid to
VuUiamy, there remained a balance of 692/. 0*. 2iL due
to the defendant on the 10th December, 1848 ; that he
had computed interest thereon from tlie lOtli September,
1848, to the 15th March, 1849, being three months after
his report, and also interest on the sum of 5003/. 17^.
from the 10th September, 1848, to the 15th March, 1849;
and that there would be due to VuUiamy for principal,
interest, and costs, with what he paid to the plaintiffs' for
principal, interest, and costs, on the said 15th March,
1849, the sum of 6870/. 9*., which he appointed the
plaintiff to pay to VuUiamy on the 13th March, 1849,
between 12 and 1 o'clock in the afternoon in the Rolls
Chapel.
That it appeared by a copy of the account verified by
Stemp's affidavit, dated the lOth December, 1848, that
the total amount given credit for as having been received
from the beginning of October, 1847, up to the 18th
November, 1848, including the quarterly rents due in
respect of each of the eleven houses on the 29th Sep-
tember, 1847, and on the 29th September, 1848, was
716/. 6*. 9rf. ; and that the said account, after payment
of interest and commission and bills of costs, to one
James, a solicitor usually employed, whose name was
usually used by the defendant on matters where he did
not wish to appear personally, was 318/. 3*., which sum
CASES IN CHANCERY.
109
was given credit for by VuUiamy as received in reduction
of the principal sum of 1000/. secured by his mortgage
security, leaving a balance of 692/. 2s. ^ found due in
respect of tlie principal sum. Stemp further deposed
that in October, 1847, he had been appointed by the
plaintiff in this suit, with the consent of VuUiamy, to
receive the rents of the said eleven houses comprised in
the mortgage of the 10th September, 1848 ; that aft«r
paying ground-rent, insurance, and other outgoings he
had, under a notice from VuUiamy, paid the rents to him.
H. Stemp also verified the account.
The plaintiff* charges, as the facts are, that the said
Lewis VuUiamy employed the defendant as his solicitor,
and that no such notice as mentioned in the said affidavit
was ever given by the said Lewis VuUiamy, and that the
clerk, the said William Henry Stemp, was the agent of
the defendant and of the said Lewis VuUiamy, and not of
the plaintiff, and that he acted throughout as such agent
only, and in fact received the whole of the rents of the
said mortgaged messuages and premises as from the 24th
day of June, 1847, to the 15th day of March, 1849 ; and
that previously to the Ist day of December, 1848, the
said Lewis VuUiamy, by the said WilUam Henry Stemp
as his agent, had actually received various sums of money
not mentioned in the said account so verified by affidavit
as aforesaid, which ought to have been brought into the
said accounts and credited accordingly, but which were in
fact improperly excluded from the said account, in order
to increase as far as possible the balance to be found due
by the Master to the said Lewis VuUiamy under the said
decree. The plaintiff does not believe or charge that the
said Lewis VuUiamy was in any way cognizant of the
irregularities complained of in this suit, and the plaintiff
charges that the said Lewis VuUiamy, in fact, took no
part whatever therein, and was in fact not cognizant
thereof, but left all matters relating to the said mortgaged
1802.
Patch
V,
Ward.
Statenietit.
no
1862.
Patch
V,
Ward.
Statement.
CASES IN CHANCBRT.
premises^ and the proceedings in the said suit, to the de-
fendant, who used the name of the said Lewis Vulliamy
in the several transactions in the Bill mentioned, for his
own purposes and to effect his own object of acquiring
the absolute ownership of the said mortgaged premises.
The statements of Stemp that he was appointed by the
plaintiff, with consent of VuUiamy, to collect and receiye
rents, and that after deducting ground-rents, &c., he paid
the balance to VuUiamy, were untrue. Previously to
October, 1847, VuUiamy had entered as mortgagee
in possession, and VuUiamy or the defendant appointed
Stemp as agent to receive the rents for VuUiamy, for
whose sole benefit he received them, while the defendant,
not acting for the plaintiff, was actively prosecuting the
decree for foreclosure.
The defendant aUeges that on the 16th of May, 1849,
an order absolute for foreclosure was obtained, but the
plaintiff charged that, if so, it was irregularly obtained^
and was not binding on the plaintiff.
It appeared from Stemp's affidavit that he attended at
the place fixed by the Master, on the 15th of March,
1849, for the payment of the amount found due, but that
it was not paid, and the sum of 6870/. 9^. now remains
due.
The plaintiff recently discovered, between the date of
the Master's subsequent report and the time fixed by the
Master, that Stemp, as VulUamy's agent, received from
the tenants various sums on account of VuUiamy, so that
on the day fixed for payment Stemp's affidavit was un-
true, that the sum of 6870Z. 9*. remained due.
The plaintiff stated some instances in which the whole
amount received (prior to the time fixed for payment)
had not been giv^n credit for.
The plaintiff charges that the several other tenants of
the said mortgage premises respectively paid the quarter's
rents due on the 25th day of December, 1848, at some
CASES IN CHANCERY,
time or times after that date, and before the 15th day of
March, 1849, the time appointed by the Master's subse-
quent report for payment of the amount due, and that all
the several payments aforesaid were well known to the
defendant Henry Ward, and that he in fact ultimately
received from the^said William Henry Stemp the several
sums and rents so received, and that any step taken
in the said suit was taken by and under the direc-
tion of the defendant, or with his privity, and in parti-
cular the defendant was well aware of and directed
all the proceedings taken by the said William Henry
Stemp, his clerk, and was privy to the said account being
filed and verified by the said William Henry Stemp in
the said suit, and that the defendant well knew the same
was incorrect. And the plaintiff charges that the truth
of the several facts and matters hereinbefore stated and
alleged will appear if he will truly answer, as the plaintiff
charges he ought to answer, the interrogatories to this
biU, and in particular if the defendant will answer and
set forth, as the plaintiff charges he can and ought to set
forth, the particulars of all sums'of money on account or
in respect of the said mortgaged premises, or any part
thereof (other than and except the sums mentioned in the
said account so filed in the said suit), which were received
by the said William Henry Stemp and the defendant, and
each of them or either of them, or by any person or
persons, by their or either of their order, or for their
or either of their use, did, when, and at what times re-
spectively, and firom and by whom by name respectively,
and in respect of what house or houses, or otherwise, all
and every the sums and sum so received were or was
respectively received or paid.
The plaintiff has ascertained, and it is the fact, that the
said Lewis Vulliamy never in any way interfered in the
said suit or proceedings, or paid any sum of money to the
first mortgagees in the said suit ; but the defendant, after
111
1862.
Statement.
112
CASES IN CHANCERY.
1862.
Patch
V.
War Dr.
Statement,
the said foreclosure decree liad been obtained, paid to the
said Lewis Vulliamy all principal and interest moneys
due to him, and obtained some conveyance or assignment
from him, and the defendant Henry AVard in fact claims
to be now the absolute owner of all the said mortgaged
premises. The plaintiff charges, and it is the fact, that
under and by virtue of certain assignments or assurances
executed to him by the said Edwin Leaf, and Joseph
Baily, and Lewis Vulliamy, the defendant has, since the
subsequent report of the Master in the said suit and the
alleged final decree of foreclosure, been and is now in
possession or receipt of the rent« and profits of the said
premises comprised in the said mortgaged premises, as
the absolute owner thereof, and that he in fact, by his
clerk, the said William Henry Stemp, or otherwise, has
received and applied for his own use all the rents and
profits of the said hereditaments which have become due
since the date of the Master's report of the 2l8t day of
December, 1848, including all the rents which became
due on the 25th day of December, 1848, and which were
received by said William Henry Stemp previously to the
said 15th day of March, 1849, as well as all the rents
which have since accrued due.
The plaintiff charges that the said principal sums of
5500/. and 1000/. respectively, and the interest due
thereon, either belonged originally to and were respec-
tively the proper moneys of the defendant, or that the
same have respectively been paid by the defendant Henry
Ward, and that neither of them tlie said Edwin Leaf,
Joseph Baily, and Lewis Vulliamy now has any interest
in the said mortgaged premises, and they are not neces-
sary parties to this suit. The said Edwin Leaf, Joseph
Baily, and Lewis Vulliamy, left all matters relating
thereto to the absolute diecretion of the said Henry Ward,
and that they respectively acted at the instigation or
under the advice of the said defendant, and that the said
CASES TN CHANCERY,
113
defendant in fact took the several steps and proceedings
aforesaid, and availed himself of his position as mort-
gagee and solicitor to the mortgagees, and of the know-
ledge of the position and circumstances of the plaintiff,
and of the value of said mortgaged premises acquired by
the defendant whilst acting and by acting as the plaintiffs
solicitor, for the purpose of enabling him thereby to
become absolute owner of the said mortgaged premises.
Under the circumstances hereinbefore stated the plaintiff
charges, as the facts are, that the said alleged foreclosure
decree so obtained by the said Henry Ward in the name
of the said Lewis YuUiamy as aforesaid, was obtained by
the defendant for his own benefit by improper and collu-
sive proceedings, and by pressure upon the plaintiff,
and that the proceedings in the said suit were illusory,
and that the said suit was not in fact instituted for the
purpose of realizing the securities of any or either of
the said mortgagees, or for their benefit, or under the
direction or with the privity or concurrence of any or
either of the mortgagees other than the defendant, and
that under the circumstances hereinbefore stated the said
foreclosure decree is not binding and conclusive upon the
plaintiff by reason of the improper and fraudulent con-
duct and breach of duty of the defendant Henry Ward,
and that the said foreclosure decree ought to be opened,
and that the phdntiff ought as against the defendant, who
now claims to be absolutely entitled thereto, and is the
only person now interested therein (except the plaintiff),
to be allowed to redeem the said mortgaged premises
upon payment of all principal and interest moneys
secured by the said hereinbefore-stated mortgages of the
4th day of November, 1844, and the 5th day of May,
1845, and also the said second mortgage of the 10th day
of September, 1848, and of all such costs as are properly
due or payable in respect of the said mortgaged securi-
ties, or otherwise ; and that an account ought to be taken
VOL. IV, I
isca.
Patch
r.
Ward.
Statement
SiatenienU
114 CASES IN CHANCERY.
1862. of the interest due upon the said principal sums since the
15th day of March, 1849, and the same ought to be
added to the amount found due in the said former suit up
to that date, and that an account ought to be taken of the
rents and profits of the said messuages and premises
received by or come to the hands of the defendant or his
clerk, the said William Henry Stemp, or any person or
persons, by the order or for the use of the defendant or
the said Lewis Vulliamy, not already given credit for in
the said former suit, and that the amount which shall be
80 found due in respect of such receipts ought to be
deducted from the whole amount which shall be so found
due for principal, interest, and costs upon the said mort-
gage securities ; and that upon payment of the balance
which shall be found due upon the said securities after
the said deductions, which payment the plaintiff offers to
make, the defendant ought to be decreed to re-assign the
said mortgaged premises to the plaintiff free from all in-
cumbrances made, created, or occasioned since the death
of the said mortgagees, and, if necessary, the defendant
ought to be declared to be a trustee of the said premises,
subject only to the said principal and interest moneys
and costs so due as aforesaid.
The bill prayed that it might be declared —
1. That the plaintiff was entitled, as against the de-
fendant, to redeem the said mortgages of 5500/. and
1000/., on payment of principal, interest, and costs, and
that subject thereto the defendant was a trustee for the
pltuntiff.
2, That interest, or subsequent interest, might be
computed on the principal sums remaining due on the
mortgage securities, as from the 15th day of March, 1849,
and might be added to what was found due up to that
date ; and that an account might be taken of the rents
and profits come to the hands of the defendant or Vul-
liamy, as from the loth March, 1849, and not accounted
CASES IN CHANCERY.
for in Stemp's account; and that it might be declared
that the defendant was chargeable therewith, and that
the same might be deducted from the principal monies,
interest, and costs found due on the said mortgage
securities, and that on payment of the balance (if any)
due to the defendant the defendant might be decreed to
assign and assure to the plaintiff the mortgaged premises
free from incumbrances.
115
1S69.
Pavoh
V.
Wakd.
Statement*
Mr. Giffard and Mr. Bevir^ for ground of demurrer. Argument,
submitted that the bill asked to open the foreclosure
decree as to one only of the parties to such decree.
His Honour then called on the plaintiff's counsel to
support th0 bilL
Mr. Malins and Mr. Everiit for the plaintiff. — It was
contended that the bill was demurrable on the ground
that the pluntiff had not brought the other parties to the
decree before the Court ; but the demurrer admitted the
truth of the allegations in the bill, and those allegations
were, that the defendant to this bill was the real actor
who had used the names of the other mortgagees for his
own purposes. It was submitted, therefore, that the
demurrer must be overruled.
But, if this were the hearing, and the allegations in the
bill were proved, the plaintiff would be entitled to a
decree on the present frame of the record. The defence
was, in substance, a former decree of this Court defeating
the plaintiff's right ; " but on a suggestion of gross fraud
not denied, as here, the Court will, upon an original bill,
overrule a plea of decree and report confirmed :" Lloyd v.
Mansell (a). In that case the bill alleged that a foreclosure
decree had been obtained by fraud, to which the defend-
ant pleaded a foreclosure decree and report, both made
absolute, signed, and enrolled ; but the Lord Chancellor
(a) 2 P. Wras. 73.
I 2
116
CASES IN CHANCERY.
18G2.
Patch
V.
Ward.
A rgument.
said ^^all these circumstances of fraud ought to be answered,
which the defendant has not done," and directed the plea
to be overruled, and not to stand for an answer.
In Harvey v. Tebbvtt (a), where a mortgagee resisted
the right to redeem, on the ground of a foreclosure decree
coUusively obtained, the Court opened the decree, and
decreed the mortgagee to pay so much of the costs of the
suit as was occasioned by such resistance.
In this case there was this further ingredient, that the
defendant was the plaintiff's solicitor. In Bulkley v.
Wilford (i), where an attorney, the solicitor and relative
of the testator, advised him to levy a fine, and afterwards
claimed as his heir-at-law (his will being revoked by the
operation of the fine) ; he was held a trustee of the estate
for the devisees, oa the ground that no professional man
can be allowed to take advantage of his own wrong.
In Gore v. Stackpool{c\ where the bill prayed that
the plaintiff might be decreed entitled to redemption and
re-conveyance of the mortgaged estates, notwithstanding
the decrees and proceedings that had been taken, and also
to all proper accounts. Lord Redesdale decreed all the
proceedings in the foreclosure decree void.
In Archbold v. The Commissioners of Charitable Dona-
tions {d) the bill alleged fraud, which was not proved,
but the plaintiff was held entitled to relief on other
grounds.
[Bowen v. Evans {e), Burgh v. Langton (/), Gumey v.
Jackson (jr), Hiern v. Mill (A) were also cited.]
Judgment. The ViCE-ChANCELLOE: —
In this case the plaintiff, seeking to open a foreclosure
decree, admits the validity of the decree as to three of the
(fl) 1 Jac. & W. 197.
ip) 2 CI. & Fin. 181, 102.
(c) 1 Dow. 18.
id) 2 H. of L. C. 440.
(e) 2 H. of L. C. 257.
(/) 5 B. P. C. 213, 215.
ig) IB.k G. 97.
(A) 13 Ves. 114.
CASES IN CHANCERY.
117
parties in the foreclosure suit, and endeavours to re-open
it only as regards the fourth. The decree for foreclosure
cannot be opened without impeaching the whole decree.
The plaintiff, moreover, is willing to recognise acts under
the decree, such as the alleged assignments by the present
defendant to the other mortgagees, but seeks neverthe-
less to set the decree aside, on the ground of irregularity
and fraud. The relief granted by the Court, under the
general prayer, must be consistent with the other relief
prayed by the bill, and a redemption suit cannot be
turned into one for other purposes. The demurrer must
be allowed with costs, and without leave to amend.
1S62.
Judgtneni.
PKATT V. BULL.
Nov, 18.
1 HIS was a demurrer. The bill alleged that Thomas
Bull executed a certain paper writing purporting to be
his will, dated the 7th August, 1860, by which he made
certain dispositions of his property : —
Shortly after the death of the said Thomas Bull the
elder, the said defendant, as the alleged executor thereof,
projiounded the said paper writing, or alleged will, in her
Majesty's Court of Probata; but John Bull, as the eldest
son and heir-at-law of the said Thomas Bull the elder,
and as one of his next of kin, lodged a caveat against the
probate of the said will on the ground that the said
Thomas Bull the elder was, at the time of the alleged
date and execution of his said alleged will, of unsound
mind, and was incapable of making a valid will; and in
consequence of such caveat the said defendant instituted
An order of
the Probnte
Court for the
payment of
money is not
a charge on
land within
the meaning
of the 1 & 2
Vic. c. 110.
118
1862.
Statement,
CASES IN CHANCERY.
a suit in the said Court of Probate to try the validity of
the said alleged will, and to which suit the said John
Bull, as such heir-at-law and one of such next of kin of
the said Thomas Bull the elder deceased, and also Mary
Anne Bull, the daughter and another of the next of kin
of the said Thomas Bull the elder deceased, were made
defendants, and the said suit came on for trial on the
5th day of February, 1861, before Sir Cresswell Cress-
well, judge of the said Court of Probate ; and pending
such trial the said suit and the proceedings therein were
compromised, and an order was thereupon made by the
said learned judge whereby it was ordered by the Court,
with the consent of the parties, their counsel and at-
tornies, that a verdict should be entered for the plaintiff
in the said suit (meaning the said defendant hereto) on
all the issues, and with the like consent it was ordered
that the same plaintiff should pay to the said Mary Anne
Bull, one of the defendants in the said suit, and who was
one of the next of kin of the said Thomas Bull the elder,
as aforesaid, an annuity, or yearly sum of 25 L for and
during the term of her natural life, and that the said order
might be made a rule of the said Court at the instance
of either of the parties, if the said Court should see fit.
Shortly after the said suit in the said Court of Probate
was so compromised, and the said order therein was so
made as aforesaid, the said defendant proved the said will
of the said Thomas Bull the elder in Her Majesty*s said
Court of Probate, and he the said defendant thereupon
became and now is the sole legal personal representative
of the said Thomas Bull the elder deceased.
On the 8th day of May, 1861, the said Mary Anne
Bull, through Mr. Walter Hamilton Davis, of No. 10,
Golden Scxuare, Regent Street, in the county of Middle-
sex aforesaid, as her solicitor, caused a memorandum or
minute of the said order of the said Court of Probate to
be left with the senior Master of the Court of ^'Conunon
CASES IN CHANCERY.
Pleas*' at Westminster^ who forthwith entered the same
in the proper book kept for that purpose, in pursuance of
the statute of the Ist and 2nd Victoria, chapter 110, and
such memorandum or minute contained the name of the
said defendant as the person whose estate was intended to
be affected by the said order; and the Cottage, New
Hampton, Middlesex, was mentioned as the usual or last
known place of abode of the said defendant; and the
description of " gentleman farmer," as the title, trade, or
profession of the said defendant; and the said Court of
Probate and the title of the said suit therein was men- '
tioned as the court and title of the cause in which such
order had been made; and the 5th day of February, 1861,
was mentioned as the date of such order, and the account
of damages thereby ordered to be paid was therein men-
tioned to be 25/. per annum.
The hereinbefore mentioned order of the said Court of
Probate was on the 24th day of July, 1861, upon appli-
cation on behalf of the said Mary Anne Bull, ordered by
the said Judge of Her Majesty's Court of Probate to be
made, and was accordingly made a rule of the said Court.
A memorandum or minute of the said rule of the said
Court of Probate, containing all the particulars contained
in the said memorandum or minute of the hereinbefore
mentioned order, was on the I9th day of October, 1861,
left by the said Mary Anne Bull, through the said Mr.
Walter Hamilton Davis, as her solicitor, with the said
senior Master of the said Court of Common Pleas at
Westminster, who forthwith entered the particulars
thereof of the said rule as set forth in the said last
mentioned memorandum, in the proper book kept for that
purpose, in pursuance of the said statute of the 1st and
2nd Victoria, cap. 110, sec. 19, and the registration of the
said memorandum or minute of the said rule is still sub-
sisting and in full force.
A memorandum of the said annuity or yearly sum of
119
1S62.
Statement.
Sttttetnent
120 CASES IN CHANCERY.
1862. 25/. wa« also on the said 19th day October, 1861, duly
registered in pursuance of the statute of the I8th
Victoria^ chapter 15, as against the estate of the said
defendant, and such last mentioned registration is still
subsisting and in full force; the said Mary Anne Bull,
to whom the said annuity or yearly sum of 251. is secured
and made payable during her life as aforesaid, being still
living.
By an indenture dated the 16th November, 1861,
Mary Anne Bull assigned the annuity to the plaintiffs,
with i>ower to receive and give receipts for the same.
At the time of his death the testator was entitled to
certain leasehold hereditaments at St John's Wood, and
other parts of London, one of which was subject to a
mortgage.
The defendant, on obtaining probate of the testator's
will, entered into possession of the said leasehold premises.
The hereinbefore mentioned order and rule of the said
Court of Probate so respectively registered in the said
Court of Common Pleas as aforesaid, have under and by
virtue of the said statute of the 1st arid 2nd Victoria,
chapter 110, the same effect as a judgment in one of the
superior Courts of Common Law at Westminster; and
such registration as aforesaid constitutes the said annuity
or yearly sum of 251. for the life of the said Mary Anne
Bull, a valid charge upon all the freehold and leasehold
hereditaments and premises of the said defendant,
including all the said several leasehold premises which
were the property of the said Thomas Bull the elder
deceased at the time of his death as aforesaid; and the
said plaintiff is under and by virtue of the aforesaid
registrations, and the hereinbefore stated indenture of the
16th day of November, 1861, entitled to such charge
and to the same remedies in this Honourable Court as
against the said several leasehold premises in the same
manner and to the same extent as he, the said plaintiff.
CASES IN CHANCERY.
would have been in case the said defendant had, as he in
fact had, power to charge the same several leasehold
premises, and had by writing under his hand agreed to
charge the same several leasehold premises, with the
amount of the said annuity or yearly sum of 25/. during
the life of the said Mary Anne Bull; and under the
circumstances aforesaid the said plaintiff is advised, and
hereby charges, that according to the true construction of
the 13th section of the said statute of the 1st and 2nd
Victoria, chapter 110, the said plaintiff has now a right
to enforce, and to proceed in this Honourable Court to
obtain the benefit of, such charge as aforesaid; the said
rule of the said Court of Probate having been obtained
more than one year prior to the filing of this bill of
complaint, that is to say, on the 24th day of July, 1861 ;
and the obtaining of such rule, and the subsequent regis-
tration thereof as aforesaid, being tantamount to having
entered up a judgment against the said defendant on the
said 24th day of July, 1861; and having subsequently
registered such judgment in the said Court of Common
Fleas.
The bill alleged that under the circumstances tlie
plaintiff had become entitled to have the annuity paid out
of the rents and profits of the leasehold premises.
The bill alleged that the defendant, as executor and sole
beneficial legatee of the testator's will, and with a view of
defeating the order and rule of the Court of Probate,
had put up the property for sale by auction, but had
bought it in. The bill asked for an injunction to restrain
the sale, and prayed for a declaration —
1. That the annuity was a charge on all the said lease-
hold premises to which the testator was entitled at the
time of his death, as against the defendant and all
persons claiming through or in trust for him, and on the
equity of redemption of those in mortgage.
2. That die arrears and future payments of the said
121
1862.
Statemetit,
122
1802.
Statement.
CASES IN CHANCERY.
annuity of 25/. during the life of the said Mary Anne
BuU^ might be paid out of the rents and profits of the
said leaseholds, or out of the dividends and interest to
accrue duly on the proceeds of the sales of the said
leaseholds.
3. That, in case the leaseholds should be sold, a suffi-
cient part of the proceeds to answer the annuity should
be laid out and invested, with liberty to apply.
The bill further prayed for an injunction to restrain the
defendant from completing the sale, or encumbering the
premises, without paying into Court a sufficient sum to
answer the annuity, and also from receiving the rents and
profits of the leasehold premises. The bill also asked for
a receiver, and all necessary accounts.
Argument. Mr. Bacon and Mr. Hardy for the demurrer. — The
object of this bill is to obtain a declaration of the Court
that an order of the Court of Probate for the payment of
an annuity operates as a charge on the leasehold estates.
The question turns mainly on the construction of the
25th section of the 20 & 21 Vic. c. 77, s. 25. By
that section it is enacted that the Court of Probate shall
have the like powers for enforcing its orders as are vested
in the Court of Chancery. It is to be observed that the
Legislature does not say that the order of the Court of
Probate shall have the same effect as the orders of the
Court of Chancery, but simply that there shall be the
same authority for enforcing its decrees. Now, it is
not under its power to enforce its decrees that a decree
of this Court charges the land, but by virtue of a distinct
provision in the 1 & 2 Vic. c. 110, ss. 13 and 18, which
enact that a judgment entered up in any of her Majesty^s
Superior Courts at Westminster, shall operate as a charge
on all lands, and that decrees and rules of the Courts of
equity and law should be considered judgments. But
can this enactment apply to decrees of the Court of
Argument,
CASES IN CHANCERY. 123
Probate ? Clearly not, as it was not called into existence ^222!
till nineteen years afterwards. If, indeed, the 1 & 2
Vic. c. 110, had anywhere declared that the decrees of the
Ecclesiastical Courts then in existence should operate to
charge real estate, there might be some colour for the
claim set up by this bill, inasmuch as the Court of Probate
may be said to represent the Ecclesiastical Court, but
the absence of any such provision clearly shows that it
was not the' intention of the Legislature to invest the
decrees of the Probate Court with the same power to bind
real estate as the Superior Courts of law and equity. It
is certain that in terms the Legislature has not done so.
This distinction is quite reasonable. It does not come
regularly within the scope of the jurisdiction of the
Court of Probate to direct payment of any sum of
money. In this particular case a proceeding in the
Court was compromised, and the compromise was made
a rule of court. If the plaintiff has any remedy under
this order, it is in the Court that made it: The Thames
Iron Works Company v. Patent Derrick Company (a).
Secondly, if the order is not under the statute a
charge on land, it is quite clear that the Begistration
could not make it so. (jb).
Thirdly, the biU does not allege that the annuity was
in arrear.
Mr. Malins and Mr. BiUon for the bill— The 25th sec.
(a) 1 Job. & Hem., 93, 101. of contempt, and generally for
(h) 20 & 21 Vic. c. 77, s. 26.— enforcing all orders, decrees, and
"The Court of Probate shall have judgments made or given by
the like powers, jurisdiction, and the Ck)urt under this Act, and
audiorityfor enforcing the attend- otherwise in relation to the
ance of persons required by it matters to be enquired into and
as aforesaid, and for punishing done by or under the orders of the
persons failing, neglecting, or Court, as are by law vested in the
refusing to appear, or to be sworn, High Court of Chancery for such
or make affirmation or dedara- purposes in relation to any suit or
tion, or to give evidence, or guilty matter depending in such Court.
124
1802.
Argument,
CASES IN CHANCERY.
of the 20 & 21 Vic. c. 77, gave the Court of Probate the
same powers for enforcing its orders as the other Superior
Courts had at that time. What were those powers?
One of them, and perhaps the most valuable, was a power
to make a decree which fastened on the land. Then, why
was that power to be excepted? It was not the question
whether the 1 & 2 Vic. c. 110 gave to the Probate
Court the power in question, but whether, having, as it
was admitted it did, conferred that power on the Superior
Courts, the Act of 1857, which enacted that the Probate
Court should have all the ix)wer8 which the otlier Superior
Courts then had, did not include this, the most important
one.
It was submitted, therefore, that the demurrer ought
to be overruled with costs.
Mr. Bacon was heard in reply.
Judgment,
The Vice-Chancellor : —
K an order of the Court of Probate is to have the force
and effect of a judgment of a Court of law, or a decree
or order of this Court, it must have that force and effect,
eitlier by express words in the Act of Parliament which
constituted the Court, or by necessary imjJication from
the language of that Act and of the Act of 1 & 2 Vic.
c. 110, construed with reference to each other.
Inasmuch as the Court of Probate was not in existence
at the time when the 1 & 2 Vic. c. 1 10 was passed, it is not
likely that there can be found in that Act words to 8up|)ort
the case made by the bill. The words of that Act are
confined to judgments of the Superior Courts of com-
mon law at Westminster, and orders and decrees of the
High Court of Chancery.
The Act of the 20 & 21 Vic. c. 77, which constituted
the Court of Probate, might have declared, and probably
would have expressly declared if the Legislature had
Judgtnent.
CASES IN CHANCERY. 125
80 intended, that all orders, judgments, and decrees of 1B62.
that Court should have the same force and effect as Pjiatt
judgments of the Superior Courts of common law at jj**^^
Westminster, and orders and decrees of the High Court
of Chancery. There are, however, no such express words
to be found in the 20 & 21 Vic. c. 77. But in the 25th
section there are very remarkable words, which say; that
"the Court of Probate shall have like powers, jurisdic-
tion, and authority ybr enforcing all orders, decrees, and
judgments made or given by the Court under that Act,
and otherwise in relation to the matters to be inquired into
and done by or under the orders of the Court under that
Act, as are by law vested in the High Court of Chancery
for such purposes in relation to any suit or matter
depending in such Court." That section, in plain lan-
guage, ^ves to the Court of Probate only authority to
enforce its own orders. It may enforce its own orders in
the same manner as the orders of this Court can be
enforced, by writs of execution, or in such other lawful
manner as will not be inconsistent with the practice of
this Court. But the power of enforcing an order is one
thing, and the force and effect of an order are another ;
and if I am asked to construe these clauses which relate
to the power of enforcing the orders of the Probate
Court as meaning that its orders shall have the same
force and effect as judgments of a Superior Court of
law, and decrees and orders of this Court, there seems to
be no language or authority to enable me to do so. On
the contrary, there are two circumstances which seem to
restrain this Court from putting any such large construc-
tion upon the words, " the power of enforcing all orders,
decrees, and judgments, made or given by the Court of
Probate." The Legislature, in constituting the Court of
Probate, constituted it as a Court for a peculiar and ex-
traordinary jurisdiction, which was theretofore exercised,
not by a Court of the Queen, but by the Ecclesiastical
Judgment,
126 OASES IN CHANOERY.
1862. Courts, which were constituted for the purpose of
deciding all questions relating to the validity of wills,
and for granting probates and letters of administration.
These matters are now made the prominent objects of the
jurisdiction of the Court of Probate. There is no juris-
diction over matters of debt given by this Act of Parlia-
ment, though it is very true that there is nothing to restrain
the Court from making orders for the payment of costs, or
sums of money agreed to be paid in cases of compromise ;
and no doubt such orders would be within the jurisdiction
of the Court.
But, considering the character of the Court — its great
scope, and the object of its jurisdiction — a judgment in the
sense of a peremptory order of the Court against a debtor
at the instance of a creditor would be foreign to the juria-
diction of the Court of Probate.
This is explained by the Act of Parliament; for, on
looking at the 83rd section^ (a) I find that the Court of
Probate has a jurisdiction to exact a bond of security
from those who are intrusted as executors and adminis-
trators, with power to collect and administer the assets of
deceased persons, the amount of which is fixed by the
Court; and this is done to create an obligation as between
a debtor and a creditor. The jurisdiction of the Court
of Probate is to exact such a bond, but the Act directs
that bonds so exacted shall not be the subject of litigation
in the Court of Probate, but shall be enforced in a Court
(a) 83rd section. " The Court tratow, ehaU thereupon be entitled
may, on application made on to sue on the said bond in his own
motion or petition in a summary name, both at law and in equity,
way, and on being satisfied that as if the same had been originally
the condition of any such bond given to him instead of to the
(prescribed by the Slst section) judge of the Court, and shall be
has been broken, order one of the entitled to receive, as trustee for
registrars of the Court to assign all persons interested, the full
the same to some person to be amount recoverable in respect of
named in such order, and such any breach of the condition of
person, his executors or adminis- the said bond.
CASES m CHANCERY.
of common law, or in a Court of equity. All this seems
to show that a judgment, which in a general sense is an
order of a Court to be enforced by a creditor against a
debtor, is not the sort of order which is within the proper
scope and province of the jurisdiction of the Court of
Probata.
For these reasons I think there is no ground for con-
struing the language of the Act, so as to say that the
words of the 25th section give to the orders of the Probate
Court the same force and effect as judgments of a court
of law, or the decrees of tlie Court of Chancery. I am,
therefore, of opinion that this demurrer must be allowed,
and with costs.
127
186S.
Judgment,
SCAMMELL v. LIGHT.
I^ov, 19, 20.
1 HIS was a demurrer. The bill prayed — BUi to ad-
1. That the estate of a person named James Light J^l^^eof*^*
might be administered in this Court, and proper accounts deceased per-
2* ^ 1 m m son found
directed, &C. &C. lunatic by
2. That for the purposes aforesaid proper accounts might and fopan"'
be taken of the dealings and transactions of the defend- ^^^^^^ of the
. , . „ - dealings of
ants respectively m respect of the testator's estate and the defend-
property between the 11th September, 1848 (the date estatTfrom'*
of his lunacy) and his death, and of the monies received Sotunacjtiii
by the defendants in respect of such dealings and trans- ^^ death,
. alleging fraud.
actions, and of the application thereof, and that the Demurrer
by the defend-
ants, who were the executors and trustees of a will made before the lunacy, and also com-
mittee and surety under the commission, that the proper jurisdiction was in lunacj-—
Oyerruled with costs.
128
CASES IN CHANCERY.
1862.
SCAMXIBLL
V.
Light.
Statement,
balances due from the defendants respectively to the
testator's estate might be ascertained, and that the defend-
ants might be charged in account with such balances, and
with interest thereon after such rate and during such
periods as to this Court should seem just.
The bill alleged that in and prior to 1848, up to the
issuing of the commission, James Sign, the testator, was
engaged in partnership with the defendant John Light,
and was entitled to considerable balances due from the
said John Light. He also carried on business on his own
account, and was entitled to a considerable amount due on
book debts. He was also entitled to certain real estate.
In September, 1848, the testator became of unsound
mind, whereupon the defendant John Light took on him
to act as trustee on behalf of the testator, and received,
and dealt with the property in concert with the defend-
ant, Thomas Tate. On the Uth September, 1848, the
defendant Light caused the lunatic to be removed to a
lunatic asylum. The bill alleged that the defendant
Light had received considerable sums of money belonging
to the lunatic in December, 1848. The defendant Light
presented a petition, praying for a commission in lunacy.
A commission was accordingly issued, and on the 20th
January, 1849, Sign was found lunatic. At the date of
the commission the defendant Light knew that the lunatic
had made his will, prepared by Mr. Brown, the solicitor
to the commission, and that the defendants had been
api)ointed executors and trustees thereof. After the com-
mission it was agreed between the defendants that the
defendant Light should procure the defendant Tate to
be appointed committee of the person and' the estate
of the lunatic, and that Light should become one of
the sureties. The bill then proceeded to allege a series
of fraudulent and improper proceedings, committed by
the committee and John Light, acting in concert toge-
ther^ such as concealing and understating the value of
CASES IN CHANCERY.
129
the testator's share in the business. That the defend-
ant Light was allowed to receive the amount, under
an arrangement between him and the committee, which
was concealed from the Lord Chancellor. That the
sale of the lunatic's property was also managed by Light
under the said agreement. That the said Light re-
tained large sums in his hands, let for hire the vessels
in which the lunatic had shares, and sold some of them.
That no part of the monies was invested, or paid into
Court, but the same were retained by John Light in his
own hands, and mixed with his own moneys, and employed
in his own trade, and remained in the possession of the
defendant Light at the death of the lunatic. That, in
order to conceal the mode in which the estate had been
dealt with, the defendants agreed that the committee,
Thomas Tate, should not pass his accounts, which he
never did, except for the first year, and in that account
none of certain capital sums were mentioned. The bill
stated sums to the amount of 3814/. 2$. Id,, as being
received in the lifetime of the lunatic. The bill further
alleged the defendant Tate, with the priority of Light,
let certain real estate belonging to the lunatic, but never
accounted for the rents; that the defendants alleged that
they had accounted for such rents, but no account had ever
been delivered to the plaintiff or to any other person.
The bill alleged that James Sign, before the lunacy, made
his will, dated the 10th August, 1848, of which he ap-
pointed the defendants executors and trustees, and whereby
he made certain dispositions, under which the plaintiffs
had ultimately acquired an interest. The testator died
on the 8th May, 1856. The bill then proceeded thus: —
At the funeral of the said James Sign the defendant
John Light gave orders, and acted and conducted himself
as one of the executors and trustees of the said will, and
on that occasion the plaintiff Henry Harrison asked the
defendant John Light whether the said James Sign had
VOL. IV. K
18C2.
SCAMMELIi
V.
Light.
Statement,
130
CASES IN CHANCERY.
1862.
SCAMMBLL
V,
Light.
Statement,
died rich^ to which the defendant John Light replied that
there would be plenty for all if it was not fooled away in
law, and upon the said last named plaintiff asking what had
become of the money arising from the sales of the said
James Sign's property, the defendant John Light replied
that it was in the Bank of England, and as safe as the bank.
The statement so made by the defendant John Light as
to the investment of the said money was wholly false. In
fact no part of the money arising from the sales of the
said testator's property has ever been invested, but the
greater part thereof remained, and was at the death of
the said James Sign, and still is, in the hands of the said
John Light, and the residue thereof was and the same
still is in the hands of the defendant Thomas Tate.
The defendants, acting fraudulently and in collusion
together, resolved that the moneys in the hands of the
defendant John Light, as aforesaid, should be retained by
him for the common benefit of them the said defendants,
and that, in order to avoid the necessity of the defendant
John Light accounting for the same, which they were
aware he would be compelled to do if he proved the siud
will, the same will and codicil should be proved by the
defendant Thomas Tate alone, who is a person of little or
no property, and that the defendant Thomas Tate should
not call upon or require the defendant John Light to pay
over any part of the moneys in his hands on account of
the said testator's estate.
Accordingly on the 12th July, 1858, and not before, the
defendant Thomas Tate alone, in pursuance of the said
arrangement, proved the said will and codicil, and the
defendant John Light, although he had previously repre-
sented himself to be and acted as the executor and
trustee of the said testator, renounced probate of the
said will and codicil. On that occasion the value of the
said testator's estate was stated to be not exceeding the
sum of 200/., and duty was paid thereon accordingly.
CASES IN CHANCERY.
131
In pursuance of the said fraudulent arrangementi the
defendant Thomas Tate, acting in collusion with the
defendant John Light, has refused and still refuses to
take any proceedings against the said last-named defend-
ant to compel the payment of the amount in his hands
on account of the said testator's estate, or to procure an
account of the moneys received by him the said de«
fendant John Light, in respect of sueh estate.
As the plaintiffs are advised, the defendant John Light,
notwithstanding his renunciation as aforesaid, has accepted
the office of trustee and executor conferred upon him by
the said will, and is liable to account for the said testator's
estate as such executor and trustee, and cannot now
disclaim the trusts of the said will.
No account of the said testator's estate, or of the appli-
cation thereof, has ever been ftirnished by the defendants,
or either of them, to the plaintiffs, or any of them, and
the defendants have refused, and still refuse, to furnish
any such account.
Very large balances or sums of money arising from the
said testator's estate are now in the hands of the de«
fendants, but they revise to pay the same, or any part
thereof.
No proper account of the said testator's estate can be
taken without ascertaining the manner in which the said
testator's estate was dealt with and disposed of by the
defendants respectively between the date of his lunacy
and his death; and the defendants have never stated, and
they re&se to state, any such account, and the same
cannot be taken without the assistance of this Honourable
Court.
Some proper person ought to be appointed to receive
and collect the testator's estate.
The defendant Tate filed a demurrer and answer.
The demurrer was as follows : —
To so much of the bill of complaint as prays that
K 2
laes.
SCAMMSLL
Light.
8tat€fMHt,
132
CASES IN CHANCERY.
1862.
Scam M ELL
V,
Light.
Statemetit,
Argument,
accounts may be taken of the dealings and transactions of
this defendant in respect of the estate and property of
the testator James Sign in the said bill mentioned
between the 11th day of September (the date of the
lunacy of the said testator) and his death, and of the
moneys received by this defendant in respect of such
dealings and transactions, and of the application thereof,
and as prays for relief consequent upon the taking of
such accounts, and as seeks for discovery for the pur-
poses of taking such accounts and consequent relief,
this defendant doth demur, and for cause of demurrer
showeth that this Honourable Court has no jurisdiction,
and that the proper jurisdiction is with the Lord Chan-
cellor, entrusted with the care and commitment of the
custody of the persons and estates of persons found
idiot, lunatic, or of unsound mind ; and for further cause
of demurrer showeth that the plaintiffs are not entitled in
this Honourable Court to any relief against or discovery
from this defendant, and this defendant humbly prays the
judgment of this Honourable Court as to such parts of the
said bill as he has so demurred to as aforesaid. And as
to the residue of the said bill of complaint this defen-
dant in answer, &c., &c.
Mr. Green and Mr. Caldecott for the demurrer. — An
account against the committee of a lunatic ought to be
taken in Lunacy and not in Chancery. In Re Fitz-
gerald{a) Lord Redesdale said(i), " The control of this
Court (over the committee) does not determine by the death
of the lunatic. The committee continues liable to account
and liable to all the consequences of any misconduct, and
bound to act on delivery and possession as the Court shall
direct" The court referred to was the Chancellor sitting
in Lunacy. If, then, the proper jurisdiction was in
Lunacy, the Court of Chancery would not assume juris-
(a) 2 Sch. & L. 432. {h) Ibid. 441.
CASES IN CHANCERY.
133
diction " Where the powers of the ordinary courts are
sufficient for the purposes of justice^ and a plaintiif can
have an effectual remedy in a court of law (i>., in another
court), and that remedy is clear and certain. A demurrer
will hold (a). To take any other view would be to leave
the committee to be harassed by two proceedings in
respect of the same matter, and that this Court never
did. In fact, if this bill were maintainable, the committee
must account twice, because the committee could not pass
his accounts without an inquiry what money was in his
hands from time to time: Ex parte Cotton {b). Where
a committee had failed to pass his accounts he would be
charged interest on the balances in his hand : Ex parte
Hall, re Legardic). In Ex parte Clarke (rf), it was held
that there was no jurisdiction in Lunacy to try the
question of heirship. [ Tharp v. Tliarp {e) was also
cited.]
It was clear on these grounds that, even if the Court
of Chancery has jurisdiction to take these accounts, the
bill ought not to have been filed without leave.
The cases of Grosvenor v. Drax (/) and Wigg v. Tiler {g^
would be cited in support of this bill, but those cases were
distinguishable from the present. All that Grosvenor v.
Drax decided was that on a petition in Lunacy the Lord
Chancellor hod no jurisdiction to charge a committee with
the misapplication of the funds paid him for maintenance.
In Wigg v. Tiler y there being a dispute between the next
of kin and the heir-at-law of the lunatic, the Court
directed a bill to be filed to take the accounts of the
lunatic's estate. The point actually decided was that the .
Great Seal acted as a commissioner in the care of lunatics.
In Re Gilbert Qi) the Lord Chancellor refused an
(a) Mitford's PI. ed. by Smith,
145.
(h) 1 Yes. 156.
(«) Jac. 160.
(^} Ibid. 589.
{e) 3 Mer. 510.
(/) 2 Knnpp, P. C. 82.
ig) 2 Dick. 552.
(h) 1 Ball & Beatt. 297.
1S62.
SCAMMBLL
V.
LlOHT.
Aryumtnt,
134
CASES IN CHANCERY.
1862. inquiry in Lunacy as to the next of kin in order to dis-
ScAMMBLL tribute the funds.
Light. IShelford on Lunacy, 26, and Elmer's Lunacy Practice
, were also cited. See also Sheldon v. Fortescue (a).]
Argument,
Mr. Bacon and Mr. Freelinyy for the bill, were not
called on.
Judgment,
The Vioe-Chancellor : —
The cases of fViyg v. 2\7er, Grosvenor v. Drax, and
Ex parte Gilbert are distinct authorities in support of the
jurisdiction of this Court to direct these accounts. This
is a suit for the administration of the testator's estate and
the accounts could not be properly taken in Lunacy,
where all the proceedings were ex parte. For these
reasons, and looking at the allegations of the bill as to
the fraudulent dealings with the estate, and the collusion
between the defendants, the demurrer must be overruled
with costs.
Nov. 20, 21,
22,24.
Dec. 4.
Where the
Tendors of a
CLARKE V. MACKINTOSH.
MACKINTOSH v. CLARKE.
. HESE causes came on on bill and cross bill. The
brewery *made Original bill prayed that a certain agreement dated the
hiOTMLtent ^^^^ August, 1861, might be specifically performed, and
representa- the cross bill prayed that the same agreement mi?ht be
tions as to the
profits of the concern which demanded inyestlKation, for which the Tendon afforded every
facility, and which the purchaser in fact partially made, the Court decreed spedflc
performance.
{a) 3 P. Wms. 104.
CASES IN CHANCEUT. 135
declared void and delivered up to be cancelled. The 1^02*
cross bill stated that in June, 1861, the attention of Clarke
Messieurs Mackintosh was directed to an advertisement maokihxmh
which appeared in the Times newspaper on the 18th KACKiiiTotH
June, 1861, and which was in the following terms : — culbkb.
" To Brewers. — Old-established and profitable Stateii^t.
London Brewery for disposal. Messrs. Peter Broad &
Pritchard, are instructed to dispose of the interest in a
well-known old established and highly lucrative brewery,
situate in a central position, and commanding a very
extensive and desirable connexion, which the present
proprietor (who is retiring) has enjoyed for the last 30
years. The whole of the plant is in perfect working
order, and the trade very recently has amounted to nearly
200 barrels weekly at good prices. The premises con-
tain every possible convenience, are very commodious,
and held under an exceedingly advantageous lease at a
rental which produces a profit income of nearly 400/.
per annum, allowing the occupation of the brewery,
stables, and dwelling-house free. Principals who can
command 7000/. to 8000/. may obtain every particular of
Peter Broad & Pritchard, 28, Poultry, E.G."
Upon seeing the advertisement Messrs. Mackintosh
applied to Messrs. Broad & Pritchard, the agents, for the
particulars, of which these gentleman gave them the
following memorandum : —
" Brewery — Clerkenwell.
" Rent of the whole premises 400/. A portion is let
ofi^ at 750/., leaving the brewery and other part of the
premises in the occupation of the proprietor. Lease 20
years. Premium 1600/. Goodwill 1/. per quarter.
Fixtures, utensils, plant, and stock, at valuation. Doing
150 barrels weekly proof. Average 200 barrels yearly.
The proprietor retiring after 30 years' occupancy."
136 CASES IN CHANCERY.
1862. Messrs. Mackintosh had some interviews with the
ciL^B defendant Clark and his son : They also received from
Messrs. Broad & Pritchard the following letters : —
V.
Mackintosh
Mackintosh
CL^.. "July 26th, 1861.
Statement, " ^R. ClARKE's BrEWERY.
** Sir, — The present sale is 150 barrels weekly ; of this
50 are to private families ; he serves also one workhouse,
a lunatic asylum, and several large establishments which
pay well. The trade has been allowed to fall off entirely
through non-application for orders, and can be increased
to almost any amount.
" Mr. Clarke is willing to contract to give you any
information necessary for carrying on the business, and
Mr. Clarke, junior, will remain with you until you arc
quite efficient in the art of brewing.
" Mr. C. is willing also to give you full access to his
books, and to render you good evidence of the genuine-
ness of the business in all respects.
" The retention or increase of the business will of
course depend on the attention which is given by the
successor of Mr. Clarke, but he has no hesitation in say-
ing that, if the quality of the articles are maintained,
and only an ordinary degree of attention paid, the busi-
N.B.— So in ^ess wiU immediately begin to extend. It will afford me
original. much pleasure to supply.
" I am, dear Sir, for partner and self,
" Yours truly,
"T. Pritchard.
"J. D. Mackintosh, Esq."
"Crown Brewery.
" July 30th, 1861.
" Sir, — The following statement taken Irom the books
shows the business for
CASES IN CHANCERY.
137
1858
1859
'I860
Quarters Malt.
. 1769 .
. 2034 .
. 1618 .
5421
Bamlii.
1862.
. 7501
CLXRE.m
. 7853
. 6650
Mackintosh
Mackintosh
V.
Clabke.
22,004
Statement.
showing a consumption of 5421 quarters malt, and pro-
duction of 22,001 barrels of beer of different descriptions.
**The deficiency of the last year we have before
explained to yoji we believe satisfactorily, and have no
hesitation in stating that a very largely increased business
may immediately be done by the infusion of an ordinary
amount of energy and the supply of an equally good
article as that which has hitherto been produced.
" We shall be happy to give you further attention, or
make any appointment you may propose with the pro-
prietor. Waiting your reply, we are, Sir, yours truly,
"Peter Broad & Pritchard.
" Thos. J. D. Mackintosh, Esq."
After some discussion the following agreement was
executed, to which the schedules, containing a list of
debtors, were added just before the execution of the
agreement. Messrs. Macintosh paid by way of deix)sit
500/. The agreement was as follows : —
The said agreement was in the words and figures fol-
lowing, that is to say : —
"Memorandum of an agreement made and entered into
this 19th day of August, 1861, between Charles. Clarke,
of the Crown Brewery, Little Sutton Street, Clerken-
well, in the county of Middlesex, brewer (hereinafter
called the vendor), of the one part, and Thomas John
Devereux Mackintosh, and Kobert James Mackintosh,
of Totteridge Lodge, Totteridge, in the county of Herts
138 CASES IN CHANCERY.
1862. (hereinafter called the purchasers), gentlemen, of the other
Clarke part, witnesseth that in consideration of the sum of 3000/.,
Mackintosh *^^ ^^ ^^^^ further sum as shall be ascertained to be the
Mackiktosh amount of the valuation hereinafter mentioned to be paid
Ci^ABKB. by the purchasers to the vendor in manner hereinafter
Statement, i^entioned, the said vendor hereby agrees to sell to the
said purchasers, and the said purchasers hereby agree to
purchase of the said vendor the lease of the premises
known as the Crown Brewery, Little Sutton Street,
Clerkenwell, aforesaid, and the lease of the premises,
numbered 26, Tysoe Street, Wilmington Square, Clerk-
enwell, aforesaid, for the unexpired portions of the
several terms for which the same are now respectively
holden, subject to the covenants in the said several leases
contained, and to the underlease of the said premises in
Tysoe Street aforesaid, granted to and to all
other tenancies now subsisting in the said premises, or
any part or parts thereof, and also the goodwill of the
business of a brewer, heretofore carried on by the vendor
upon the said premises in Little Sutton Street aforesaid,
and all the plant, fixtures, fittings, casks, utensils, imple-
ments, carts, horses, drays, harness, stock-in-trade, and
effects of every kind in and about the said premises or
elsewhere belonging to the vendor, and used in or relating
to or belonging to his said business. And it is hereby
agreed between the parties hereto as follows, that is to
say: — (1) The aforesaid plant, fixtures, fittings, casks,
utensils, implements, cart horses, drays, harness, stock-
in-trade, and effects shall be valued by two referees or
their umpire, as hereafter' mentioned, who shall also de-
termine what articles are within this condition, and the
amount of such valuation shall be considered as part of
the purchase-money. Messrs. Peter Broad & Pritchard,
of No. 28, Poultry, in the City of London, shall be the '
referees on behalf of the vendor, and Messrs. Green &
Siatemfnt,
CASES IN CHANOERT. I39
Company^ of 28, Old Bond Street, shall be the referees ises.
on behalf of the purchaser, and such referees shall, before cuMm
entering upon the matter referred, and within one week mj^ckihtosh
after the execution of this agreement, appoint an umpire, macxiiito«h
and, if they do not decide the matter within three weeks cjIm^.
after the execution of this agreement, the said umpire
shall decide the same. (2) The purchase shall be com-
pleted on the 30th day of September next, and the vendor
will, in and by the assignment of the said brewery to the
purchasers, covenant with them that he will not at any
time hereafter carry on the business of a brewer within
ten miles of Little Sutton Street aforesaid. (3) The
purchase-money shall be paid as follows, that is to say>
500/. on the execution of this agreement into the hands'
of the said Messrs. Peter Broad & Pritchard, on behalf
of the vendor, 5500/. in cash to the vendor on the pur-
chasers obtaining possession of the said premises, and the
balance or remainder of the purchase-money by three
approved bills of exchange of equal amounts, drawn by
the vendor on and accepted by the said purchasers at
twelve, eighteen, and twenty-four months' dates respec-
tively, bearing interest at the rate of 5/. per cent per
annum from the date thereof, such balance to be further
secured by a legal mortgage of the said leases, plant, and
premises, to be executed by the purchasers to the vendor
on their obtaining possession thereof. (4) The vendor
shall, at his own expense, within fourteen days from the
execution of this agreement, deliver to the purchasers or
their solicitors an abstract of the title to the premises,
commencing with the leases under which the same are
held; such leases shall in all respects be deemed and
taken to be well granted, and the vendor shall not be
called upon or required to show or prove the lessor's title*
(6) The last receipt for payment of rent due in respect
of each of the said leases shall be accepted by the pur-*
140 CASES IN CHANCERY.
1862. chasers as conclusive evidence of the due performance of
Clarke all the covenants and conditions in the said leases respec-
Mackiwtosh tively up to the time of the completion of the sale hereby
Mackintosh agreed to be made. (6) All outgoings up to the saud
Clarkb. 30th day of September shall be paid by the vendor.
Statement (^) '^^^ purchasers shall pay and bear the expense of all
such assignments and assurances as they shall require of
the said premises^ and shall also pay the vendor's costs,
charges, and expenses of and incidental to the prepa-
ration and execution of the legal mortgage hereinbefore
mentioned. (8) And whereas the vendor has lent and
advanced to the several persons named in the first sche-
dule hereto the several sums of money set opposite to the
* respective names therein: And it is hereby agreed that
the said purchasers shall take to such loans or the amounts
due in respect thereof (amounting to 1118/. or there-
abouts) on the 30th day of September next, and the
amount of the monies then due in respect of such loans
shall be included in and form part of the balance to be
secured to the vendor in manner hereinbefore mentioned.
(9) And whereas the several debts or sums of money
mentioned in the second schedule hereto are also due
from the several persons therein named to the vendor in
his said business of a brewer, now it is hereby agreed
that the said purchasers shall take to such debts^ or the
amounts due in respect thereof, on the said 30th day of
September next, and that the amount then due in respect
of such debts shall be included in and form part of the
balance to be secured in manner hereinbefore mentioned.
(10) And whereas there are several debts also due to the
said vendor firom the private customers of the said brewery,
amounting to the sum of 1000/. or thereabouts, it is
hereby agreed that the said purchasers shall receive such
last-mentioned debts for and on behalf of the said vendor,
and pay over the same to him as and when received, after
statement.
CASES IN CHANCERY. 141
deducting therefrom a commission of 5/. per cent, for the i«6*.
collection and receipt thereof. Culukb
(Signed) " Cn. Clakke. mackintobh
" T. J. D. Mackintosh. Mackikto»h
" R. J. Mackintosh. cx^bkb.
" Witness :
"Peter Bboad."
In the schedule to the agreement there was a list of
debtors to the concern, whose debts amounted to nearly
1200/. Messrs. Tuke & Valpy, acting for the plaintiffs,
subsequently on the 7th October, 1861, complained that
they had been greatly imposed on and deceived as to the
nature and character of the said business. The alleged
misrepresentation as set out in the cross bill was as
follows : —
The plaintiffs charge that the said printed advertise-
ment and the further memorandum furnished by the
defendant's agents, and the letters hereinbefore set forth,
and also the said agreement itself, contained statements
and representations which as to some important particu-
lars are entirely untrue, and as to others are grossly
exaggerated and deceptive.
In particular the plaintiffs show that the said business
is not in fact a profitable or highly lucrative brewery, nor
does it in fact command a very extensive or desirable
connexion, but that on the contrary very small profits (if
any) have been obtained therefrom, and even actual loss
has at times been sustained, and that so it would appear
if the defendant would set forth, as he ought, a full true
and particular account or statement of the quantity and
quality of beer brewed at the said brewery during the
years 1859, 1860, and 1861, and sold during such years
successively to the customers of the said brewery, and of
the prices at which the same was sold, and other particu-
lars relating thereto.
142 CASES IN CHANCERY-
1882. It Is not true that the trade in the said business has
Clabke very recently been carried on at good prices^ inasmuch as
Hacicinto8h ^^^^ about the commencement of the year 1861 to the
Mackintosh 27th day of July in the same year the greater part of the
Clajikb. trade, which has amounted to an average rate of 106
Statement, ^^^^^^ ^^^7 P^r week, was done at low prices, averaging
on the entire sales only 28«. per barrel, subject to a dis-
count of at least 6/. per cent., which would barely yield
any profit.
There is not a single large establishment served by the
defendant, except the workhouse and asylum before-
mentioned, and the latter are supplied at exceedingly low
and unremunerative contract prices ; and a considerable
part of the consumption is not such as the purchasers
could command, two of the largest public-houses being
free, and the tenant (who is the aforesaid son of the de-
fendant) is not subject to the usual obligations to take
beer from the defendant, or his successors in the business ;
and the entire connexion is moreover very undesirable*
The rental at which the lease of the said premises is
held, as mentioned in the sidd advertisement and memo-
randum, and the existing sub-tenancies, do not in fiust
produce a profit income of 400Z. or even 350/. per annumi
or any sum at all approaching the sums so stated in the
said advertisement and memorandum, inasmuch as the
gross rental (after deducting the rates, taxes, and insurance
payable by the landlord) amounts only to the nominal
sum of 601/. 15^., without making any allowance for
repairs, non-occupation, or bad debts.
The greater portion of the property is let to weekly
tenants in a very low and in some cases disreputable con-
dition of life, and the rents are precarious and insecure,
and difficult to collect.
The plaintiffs further charge that several of the sums
mentioned in the first schedule to the said agreement, and
in particular the sums therein numbered 3, 6, and 10, and
OASES IN CHANCERY. 143
in the said agreement stated and represented to have been isea.
lent and advanced to the several persons named in the clabxb
said schedule^ were never in fact lent or advanced at all mj^ckiktosh
to those persons respectively, nor are such sums, or any Mackintosh
of them, or any part thereof respectively, now in fact cjjlrxb,
owing by such persons respectively. statement.
Several of the debts or sums of money mentioned in
the second schedule to the said agreement, and in parti-
cular the sums therein numbered 4 and 5 are not in fact
due or owing at all from the several persons therein
named to the defendant, as untruly stated and represented
in the said agreement.
None of the said debts are properly secured, and a large
portion thereof are bad, and others are doubtfiil.
Mr. Clarke, in his answer to the cross bill, denied gene-
rally the allegations in the cross bill. The 21st and 23rd
paragraphs were as follows : —
It is the fact that the rental at which the lease of the
premises is held, as mentioned in the siud advertisement
and the memorandum hereinbefore set forth, and the
existing sub-tenancies, do not produce a profit income
of 400/. or even 350/. per annum ; but I say that the
plaintiiFs ascertained and were well aware of that fact
before they executed the said agreement of the 19th of
August, 1861. The net rental of the said premises, after
deducting the rates, taxes, and insurance payable by the
landlord, amounts to 542/. 6s. or thereabouts, including
320/. a year as the estimated rent of the brewery premises
since the year 1839, when I obtained my present lease of
the said premises, and expended a sum of 1800/. there-
upon; scarcely any repairs have been needed thereto^
and my bad debts in respect of the said premises have
been very small. In the first part of the said schedule
hereto I have to the best of my recollection and belief
set forth what is the amount paid by me in each year for
rates, taxes, and insurance, and what has been the amount
statement*
144 CASES IN CHANCERY.
1862. expended in repairs upon the said brewery and premises
Clarkb during the last three years, and what losses have been
Mackintosh sustained during the same period on account of bad debts
Mackintosh or non-occupation of the premises included in the afore-
Clarkb. 8*5d sale.
It was part of the said agreement of the 19th day of
August, 1861, between the defendants and myself that
they should on the 30tli day of September then next (the
day fixed for the completion of the said purchase), take
to the loans mentioned in the first schedule to the said
agreement, or the amounts due in respect thereof, on that
day, and that the amount of the moneys then due in
respect of such loans should be included in and form part
of the balance to be secured to me in manner in the said
agreement mentioned. A list of the bills, notes, and
securities held by me for the said loans was furnished by
my said solicitor to the plaintiffs' said solicitors on or
about the 17th day of September, 1861, as hereinbefore
stated, and no objection thereto was raised by or on behalf
of the plaintiffs until after the time fixed for the comple-
tion of the said purchase.
Mr. Clarke, in his affidavit filed the 23d April, 1862,
deposed as follows: — "Messrs. Mackintosh called on
Messrs. Broad & Pritchard shortly after the date of the
advertisement, and obtained further particulars. On the
24th June, 1861, they called on me at the brewery. It
being a busy day, I did not myself show them over the
brewery, but directed my son George Clarke to do so,
which he accordingly did, and he informed me that he
truthfully answered all the inquiries made respecting the
business. On the 23d July, 1861, Mr. T. J. D. Mackin-
tosh called at the brewery, and, after stating that he and
his brother were ready to treat for the purchase of the
brewery, commenced a negotiation with me for that pur-
pose. I then personally took T. J. D. Mackintosh over
the brewery, and showed him the premises. He matle
Statement.
CASES IN CHANCERY. 145
various and minute inquiries of me as to the nature and 186*2.
character of the business, which I answered truthfully, Clahkb
and gave him free access to the trade books and rent „. ^^'
o Mackintosh
account T. J. D. Mackintosh made ^several further Mackintosh
calls at the said brewery, on which occasions he made ci.a*rke.
many minute inquiries, both of me and my son and of
my cashier John Penfold, as to the business, and inspected
my trade books, rent accounts, and made various calcula-
tions for the purpose of testing for himself the trade and
profits of the said business, and the rents received in re-
spect of the said premises, I say I gave the said defendant
every facility for examining and satisfying himself as to
the nature and character of the business and the profits.
I never told the defendants that any specific sum could be
realised by the business, but I told them on one occasion
that, if they, did as well as I had done, they would not
have any reason to complain.
" I say it is not the fact, as stated in the 9th paragraph
of the answer, that the said Messrs. Mackintosh relied on
the representations said to be made to them by me and
my agents. I say that the defendant T. J. D. Mackin-
tosh called at least seven or eight times at the brewery,
and spent as much time there as he pleased in examining
the business books and state of the trade done there, and
in testing the accuracy of the statements respecting the
same made by me or on my behalf. On one of such occa-
sions my son George Clarke was engaged nearly 2 hours
with T. J. D. Mackintosh in going through and explain-
ing the business and rent books, and, as my son informed
me, Mr. T. J. D. Mackintosh stated he admired the way
the books were kept, and, as my son informed me, he
examined the rent book with considerable care, and made
many inquiries and observations as to the rental, and
made various calculations with a view of ascertaining
and satisfying himself as to the net profit rental, and
upon another occasion said I had not allowed for rates
VOL. IV. Is
146 CASES IN CHANCERY.
1862. and insurance and taxeS| and after deducting all outgoings
Clabke for repairs and other incidental expenses he expressed
Mackintosh himself satisfied with a rental of from 250Z. to 300/. a
Mackintosh year, exclusive of the brewery premises. Messrs. Mac-
Clarkb. kintosh, if they wished, could have employed any person
Statement. ^ examine and judge of the value of the said business,
to advise and assist them in making inquiries and inves-
tigations before entering into the contract.
" I believe the defendants were perfectly satisfied with
the result of the various inquiries they had made before
they made an oifer to purchase the said business, and I
believe that on the 7th August, 1861, it was agreed
between Mr. Broad and the defendant T. J. D. Mackin-
tosh that he should prepare the heads of an agreement
between the defendants and myself. And on the 14th
day of August T. J. D. Mackintosh called at the brewery
and informed me of an appointment to attend at the
office of Messrs, Broad & Pritchard on that day. I
accordingly attended at the said office, when the draft of
the heads of an agreement embodying the terms upon
which such sale and purchase as aforesaid were to be
made was drawn out by Mr. Peter Broad, and afterwards
delivered to the defendant T. J. D. Mackintosh for the
consideration and approval of himself and his brother.
Mr. Broad did not object to the draft being shown to the
defendants' solicitors, which they had ample time to do.
The draft remained in their possession till the 16th
August, when it was returned to Messrs. Broad & Prit-
chard signed and approved by them.
" Before the defendants signed the formal agreement
they could, if they had thought fit, have verified the
rental and statement respecting the loans and debts to be
taken to by them by simply expressing a wish to that
effect (which, however, they never did), or by declining
to execute the said agreement until they were satisfied
about the accuracy of the sf^id recital or statement, and
CASES IN CHANCERY. 147
I say that before the said agreement was signed by the 1862.
said defendants the defendant T. J. D. Mackintosh asked clarke
Mr. P. Broad whether it was necessary that they should mackintosh
take to the sdd debts and loans^ and on being informed Mackintosh
by Mh P. Broad that it was Necessary in order to secure cla^rkb.
the custom of the brewery, the defendants executed the stutement
agreement."
George Clarke, the son of the plaintiff in the original
bill, deposed as follows: — " On the 24th June, 1861, the
defendants called at the brewery to view the premises.
I was desired by the plaintiff to show them over the
brewery.
" A few days after the 23rd the defendant T. J. D.
Mackintosh called again at the brewery, and examined
the trade books and books of account kept by the plaintiff
in his business, and I assisted him in so doing, and was
engaged for nearly two hours showing him the said books
and explaining to him the way they were kept, when he
expressed his admiration of the way in which the said
books were kept, and asked me how long I thought his
brother, R. J. Mackintosh, would be in learning the way
to keep the said books. A short time afterwards
T. J. D. Mackintosh called again at the brewery, and
made various inquiries of me relating to the business.
I observed to him that I had turned out a much larger
number of barrels when I was countinghouse clerk than
were then being turned out, and he inquired why we
were not doing so much trade then, and I told him, as the
fact was, that the plaintiff was not pushing the business,
and that at that time, in consequence of the badness of
the brewery trade, it Was no advantage to push the trade,
as it was likely a brewer would rather lose than gain by
80 doing. The defendant appeared to be satisfied, and,
being anxious to remain in the business, I offered to bring
in 2000/. on some partnership terms, upoti which the
defendant said be thought the present trade profit would
L 2
148 CASES IN CHANCERY.
1862. not be sufficient for three, and that we had better wait a
Clarks year. He made various other calls at the brewery before
Mackintosh s^g^^g *1^® agreements. I believe he called ten or twelve
Mackintosh times, and on these occasions he made many minute
Clarke, inquiries, both of me and of the cashier, respecting the
Statement ^^^^ carried on at the brewery ; he carefully examined on
several occasions the trade books. He also examined the
rent books, and made many enquiries and observations as
to the rental of the premises. He himself made various
calculations respecting the same, and on one occasion he
observed that in the particulars supplied to him by
Messrs. Broad & Pritchard no allowance had been made
for rates, insurance, and taxes, and ultimately, after
deducting all outgoings for repairs and other expenses,
he expressed himself satisfied with a rental of from 250/.
to 300/. a year, exclusive of the brewery premises. The
plaintiff (Clarke) instructed and directed me to give
Messrs. Mackintosh every opportunity to examine the
brewery and the trade books, books of account, rent
books, and in connexion therewith to render them every
assistance in my power in enabling them fully to examine
and investigate the same, and I say I did render them all
the assistance I could.
There was a great deal of evidence on behalf of Messrs.
Mackintosh, for the purpose of proving misrepresentations
as to the value of the business. They denied positively
ever having examined the books at all, but stated they
relied entirely on the representations of Mr. Clarke and
his son. On the subject of the book debts Mr. T. J. D.
Mackintosh deposed as follows : —
" On the 19th day of August I and my brother accord-
ingly attended at the office of the said Messrs. Broad &
Pritchard, where we met the plaintiff and his said son,
and the said Mr. Peter Broad. I asked him, the said
Mr. Peter Broad, if he had prepared the agreement
between us and the said George Clarke, and he said he
CA6ES IN ClIANCEUY. I49
had not, but would have it done at once, and called a i«62.
clerk, and directed him to draw it out. Mr. Peter Broad clamk
then read to us the agreement for the purchase of the mackint a
said brewery and leasehold premises, when to my surprise MACKiHTotiH
I found it contained two schedules of loans and debts to clakkk.
be purchased and taken to by us, of which no statement or „, " —
'^^ , . . Statement,
allusion of any kind was contained in the heads of the agree-
ment previously delivered to me as aforesaid. I inquired
of the said Mr. Peter Broad whether it was absolutely
necessary for us to take these debts and loans, to which
he replied, in the hearing of the plaintiff and his son, that
it was necessary for us to do so, in order to secure the
custom, and the plaintiff thereupon added there was a
value for everything. I and my brother believed that
what was thus told to us was true, and we both then, in
?uch belief, signed the agreement. We afterwards, at
the same interview, signed the agreement with the said
G. Clarke, which had been prepared in the interval."
On the subject of the rental, Mr. Thomas, the brewery
valuer, deposed that, from the accounts and receipts pro-
duced, which he had carefully examined, he was enabled to
state positively that the gross rental amounted only to the
sum of 690Z. 95. ; rates, taxes, and insurance, 206/. Is. 5d.
Deducting from that 35/., as applicable to the brewery,
the rates and taxes would be 1717. 1*. 5f/., which, being
deducted from the gross rental of 690/. 9*., gave net
519/. 78. 7rf., which, after payment of the ground-rent
(400/. a year) and the necessary allowances for repairs,
loss from non-occupation, bad debts, and other casualties,
would, in fact, be no profit income at all. A very large
proportion of the houses were let upon weekly or monthly
lettings, and it was the invariable custom on such hold-
ings to make an allowance for repairs, non-occupation,
and losses, as well as for rates, taxes, and insurance.
Several of the tenants were considerably in arrcar, two
of them owing nearly a year's rent, and others owinjc
150 CASES IN CHANCERY.
1862. from three to six months' rent, and such rents were gene-
Clarkk rally difficult to collect.
MACKINT08H ^^' Thomas also set forth an estimated pi'ofit and loss
Mackintosh account for the four years 18-58, 1859, 1860, and 1861,
Clark*. ^^ which he stated that, from the figures taken from
stliement ^^' ^Ilarke's books, he made the profits for the four
years 647i 19*. 4rf., giving an average profit of about
160i a year.
Mr. Thomas also deposed as follows : — " Having read
the advertisement, and the memorandum and letters set
forth in the 2nd, 3rd, 6th, and 8th paragraphs of the
defendants' answer, and compared the statements and
representations therein made with the result of my in-
vestigation as aforesaid, and the account therein made up
as aforesaid, I state that Mr. Clarke's brewery, called
the " Crown Brewery," is not a profitable business or
highly lucrative brewery, or ** well known," in the ordi-
nary acceptation of that term, in the trade; and such
brewery does not command a very extensive and desirable
connection ; and that the trade has not for several years
or very recently amounted to nearly 200 barrels weekly,
at good prices, and the premises are not held under an
exceedingly advantageous lease, at a rental which pro-
duces a profit income of nearly 400/. per annum, allowing
the occupation of the brewery stables and dwelling-house
free ; and the plaintiff did not, at th6 date of the afore-
said agreement, serve, besides one workhouse and a
lunatic asylum, several large establishments which paid
well ; and I say that the representations so made in such
advertisements, memorandum, and letters cannot be sub-
stantiated by reference to the plaintiff's books or vouchers,
and such representations, if at all relied on, would greatly
mislead an intending purchaser, and they are wholly
unfair if taken as a basis of a contract for the purchase
and sale of the said business."
CASES IN CHANCERY. 151
Mr. Malinsy Mr. Greene, and Mr. Fischer for the 1S02.
plaintiff Clarke in the original suit. ClariTb
The defence to this suit set up by the cross bill is mis- mackintosh
representation ; but that defence must fail on two grounds mackintosh
— first, because the alleged misrepresentation was nothing cl/kkb.
more than certain trifling errors, insufficient to invalidate
the contract ; and secondly, because the defendants did not
rely on the representations, but had the means of investiga-
tion, and did in fact make such investigation of the facts.
As to the first point the cases were express. In Jen-
nings v. Broughton (a), the marginal epitome was this : —
^' Misrepresentations, to constitute sufficient grounds for
setting aside a purchase, must be material, as being of
such a nature as, if true, to add to the value, and must
not be evidently merely conjectural statements, and must
be made without a belief in their truth, or without reason-
able grounds for such belief." In Hanson v. Scott (i),
a piece of land imperfectly watered was described in
the i^articular as uncommonly rich water meadow, and it
was held that this was not such a misrepresentation as
would avoid the sale. In Dyer v. Hargravcic), the Court
decreed specific performance of the agreement, though
there waa a clear variance from the description, both as
to the state of the house and the cultivation of the land,
and awarded compensation. The principle was whether
the purchaser got substantially the thing he bargained for.
In Lowndes v. Lane (rf), the woods, which were a material
part of the subject matter, were described as producing
250Z. per annum on an average of the fifteen preceding
years, which was produced by being improperly cut, as to
which the purchaser had the means of forming a conclu-
sion. As to this it was held that the purchaser was not
even entitled to compensation ; but as to the tithes the
Lord Chancellor held that there had been actual misrepre-
(a) 6 De G. M. & 0. 126* (c) 10 Ves. 505.
(») 1 Sim. 13« (d) 2 Gox. 364.
152 CASES IN CHANCERY.
186-2. sentation, and directed, not the cancelling of the con-
Clarkb tract, but compensation. There was a great distinction
Mackimtosu between those cases where the purchaser had the means
Mackintosh of satisfying himself of the truth of the particulars,
Clarke, and those where he relied on mere representation.
Araument. "^^^^^y '^^ Johmofi V. Smart (a), where a house was de-
scribed as substantial and convenient, and having five
bed-rooms, it was held that this was no misrepresentation,
although the house was out of repair, and the walls in
some places were only half-brick thick, and some of the
bed-rooms extremely small inner rooms without a fire-
place, and the Court decreed the agreement to be sjiecifi-
cally performed. Here the errors in the description
might perhaps entitle the purchaser to compensation, but
on all the authorities there was clearly no ground for
invalidating the contract.
But, secondly, it was proved that the purchasers had
investigated the accuracy of the representations, and had
relied on the result of these investigations ; but, if so, they
could not now set them up as a ground for not performing
their contract. In Clapham v. ShillUo (J), it was laid down
that, if the party to whom the representations were made
himself resorted to the proper means of verification before
he entered into the contract, it might be that he relied on
the result of his own investigation and inquiry, and not
upon the representations made to him by the other party.
Or, if the means of investigation and verification were at
hand, and the attention of the party receiving the repre-
sentations were drawn to them, it might be incumbent on
a court of justice to impute to him a knowledge of the
result which, upon due inquiry, he ought to have obtained,
and the notion of reliance on the representations excluded.
The prej?ent was exactly the case here put as nearly as
possible by the Master of the KoUs, and the defendants
(ft) 3 Giff. 151 ; affirmed on (h) 7 Beav. 146.
appt'ttl, July 2l8t, 18C0.
A rgumtnt.
CA8ES L\ OHA^'C£RY. I53
could not now ask the Court to relievo them from the I8O2.
obligations into which they had entered on the ground cH^b
of misrepresentation, even if it were proved. In Jen- j^^^^^j*
ningt y. Broughton (a), advertisements for the sale of MACKiifT08H
shares in a mine had been issued containing unfounded clarkk.
statements ; but the purchase had not relied on them, and
had opportunities of judging of their accuracy, and lie
was held not entitled to have the contract rescinded. Ap-
plying the principles there laid down, it was clear that
in this case the purchasers could not complain of being
misled, whatever had been stated in the advertisements.
On these grounds it was submitted that the Court
would decree specific performance of the agreement and
dismiss the cross bill withcosts: Oleffield r. Round {b\
Vigers y. Pike (c), Jackson v. Jackson (d), were also cited.
Mr. Bacon and Mr. Jones Batemaii for Messrs.
Mackintosh, the defendants in the original bill.
It was quite clear that there had been misrepresenta-
tions more or less. That was not indeed denied by the
pliuntiff, though he alleged they were of small moment.
It was equally clear that but for those misrepresentations
the defendants never would have entered into the con-
tract. They were assured that a large number of barrels
were brewed at this brewery weekly, and that there was a
large profit realised from the brewery, and on the rental.
These representations in a greater or less degree were
untrue, but a party obtaining an agreement by a pai'tial
misrepresentation was not entitled to a specific perform-
ance. The effect of such misrepresentation was to destroy
the agreement : Clermont v. Tasbnrgli (e). There were
numerous cases in which the Court acted on this principle.
In Higgins v. Sameb (/), where a plaintiff himself,
(a) 5 De 6. M. k 6. 126. {d) 1 Sma. k 6. 184.
{h) 5 Ve«. fi08. (e) 1 Jac. & W. 112.
(c) 8 CI. k Fin. 563 ; 8.c. (J) 2 Joh. k H. 460.
3 l}r. k Walsh, 1.
164 OASES IN CHANCERY.
1862. ignorant of the quality of certain limestone, represented it
Clarke as of better quality than it was, and the defendant visited
Maokirtosh *^® quarry and might have ascertained, but did not ascer-
Hackintosu tain the quality, the Court refused specific performance
Clarke. ^^ ^^^ agreement. Tliat was a far stronger case than
. ^ this.
Argument,
In The Neio Brunstoick and Canada Company v.
Mtiggeridge (a), it was held that a person contracting to
take shares on the faith of the statements contained in
the pro8i)ectu8 has a right to be protected not only
against misstatements actually false, but has also a right
to be informed of all the facts, the knowledge of which
might have reasonably deterred him from contracting ; and
if the prospectus in that sense contains misrepresentation,
or the absence of true representation, the contract would
not be enforced. For the word " prospectus " substitute
" advertisement,'* and that was exactly this case, • In
Rei/nell v. Sprye (b) it was held that, where one of the
parties to a negotiation induces the other to contract on
the faith of representations, any one of which is untrue,
the whole contract is to be considered as having been
obtained fraudulently. Nor is the case varied by the
circumstance that the untrue representation was in the
first instance the result of innocent error, if after it was
discovered the author of the representation allowed the
other to continue in it. In Rawlins v. Wickham (c), where
the plaintiff by misrepresentation had been induced to
become partner, four years afterwards on the bank being
insolvent he was held entitled to have the contract
rescinded, and to have an indemnity against the debts of
the concern : a fortiori the Court would not decree an
agreement obtained by misrepresentation to be specifically
performed.
On these grounds it was submitted that the Court
(c) 1 Dr. k S. S6d. {e) 1 Giff. 355; m. 3 Be G.
(d) 1 De G. M. k G. 660, 708. k J. 304.
CASES IN CHANCERY. 155
would not decree specifio performance, but, if it did not 1863.
cancel the agreement, would leave the plaintiff Clarke to clarke
his remedy at law. [HcnTis v. Kemble {a\ Price v. m^ckiktosh
Macaulajf{b\ Small y. Atwood{c)y Cadman y. Horner (d). Mackintosh
and Martin v. Cotter («), as to duty of seller, also cited.] cJiitx^.
The Vice-chancellor :— Judgment.
The purchasers have resisted specific performance, not
merely by their answer, but they have by their cross-
bill prayed to have the agreement declared to be void, and
to have it delivered up to be cancelled, on the ground
that they were induced to enter into it by deception and
misrepresentation. The alleged misrepresentations are
upon the material {joints referred to three several matters.
These are, first, as to the number of barrels of beer
weekly produced and sold in the brewery which was the
subject of the contract ; secondly, as to the clear rental
of the leasehold property ; thirdly, as to the loans or
debts due to the concern, which it was agreed should be
taken by the purchasers.
There is no doubt that if the purchasers could show
that they contracted to buy in absolute and express
reliance on the truth of representations which turn out
to be fiilse, and without resort to other means of informa-
tion by which the truth might be sufficiently disclosed,
they ought not to be compelled to perform the contract.
But a purchaser is bound to exercise a reasonable degree
of caution. Therefore, if there be anything in the
nature or circumstances of the representations made
by the vendors calculated to excite suspicion, or to require
explanation or investigation, the purchaser is bound to
be on his guard, and must bear the consequence of any
negligenee on his own part; much more, if the pur-
(a> 3 Dow, & Clk% 463. (d) 18 Ves. 10.
(b) 2 De G. M. k G. 339. (e) 3 Jo. & Lat. 496. ?
(c) 1 Y. Ex. 40T, 460.
158 CASES IN CHANCEUY.
1962. chaser, not satisfied with the representations, proceeds to
Clarke investigate and inquire for himself, and has the fair
MACKiKTosn oppoi^tunity of testing the accuracy of what the seller
Mackintosh has represented, he must abide by the consequences, and
Clarke. the seller in general is relieved from responsibility.
Jttdfftnent. ^^ *^^ present case the representations as to the number
of barrels of beer produced and sold, and as to the profit
rental on the leasehold property, were so various and
irreconcilable and vague as to put any purchaser of
reasonable prudence on his guard, and to induce him to
make investigation. First, as to the number of barrels
of beer, the advertisement stated that " the trade very
recently has amounted to nearly 200 barrels weekly, at
good prices." The particulars in writing, furnished by
the agents for sale, said, *^ doing 150 barrels weekly."
The agents' letter of the 25th July, 1861, said, "the
present sale is 150 barrels weekly.*' The purchaser, in
their answer, say they did not consider that this letter
gave the information required, and that they asked for a
particular statement of the business done. Accordingly,
in the letter of the 30th July, 1861, the vendor's agents
had a return of the number of quarters of malt and
barrels of beer taken from the books for the years 1858,
1859, and 1860, and the accuracy of the representation
in this letter is not impeached.
As to the second head of alleged misrepresentation —
namely, the profit rental on the leasehold property — the
representations in the advertisement and afterwards in
the particular in writing delivered by the agent are eo
vague and inconsistent that no prudent purchaser could
be satisfied without further inquiry.
And as to the third matter, the loans or debts due to
the concern, there is no doubt a misrepresentation in a
literal sense, but not in the substance ; and before the
time fixed for the completion of the agreement particulars
on this point were asked for by the purchasers' solicitors
CASES IN CHAXCERY. I57
in the letter of the 13th September, 1861, and supplied 1862.
by the vendor's solicitor's letter of the 17th September, clahkb
1861, 60 as to give a full and accurate representation on mackiittosh
this head, with which the purchasers' solicitors appear to Mackintosh
have been satisfied. Clarkb.
The various and inconsistent representations on the r,^^"" ^
two first matters not only called for investigation on the
part of the purchasers, but they, in fact, went to investi-
gate ; and one of them, in particular, went repeatedly to
the brewery, had the books produced to him, saw the
leasehold property, had every facility afforded for full
and fair investigation, and, after that investigation had
been prosecuted at intervals during a period of twelve
days as far as the purchasers thought proper, the heads
of the offer to purchase were dictated by one of the
purchasers to the agent of the seller, and that offer was
duly* accepted. Afterwards the more formal instrument
of contract was approved by the solicitor of the pur-
chasers, who introduced an important stipulation for the
benefit of the purchasers.
When the purchasers took upon themselves to investi-
gate, and had a full and fair opportunity to test the
accuracy of what had been represented by the seller, it is
no excuse to say that the investigation made by them-
selves was loosely or carelessly made, or that their solici-
tor acted in a cursory manner. There is no evidence
whatever to show that during the investigation anything
was concealed, or withheld, or hurried on the part of the
vendor. It was argued for the purchasers that, by allow-
ing their new agents to investigate the books and other
matters after the time for the completion of the purchase
was past, the vendor, in fact, admitted that no effectual
investigation had been previously made. But the con-
duct of the vendor in permitting that subsequent investi-
gation is a strong proof of the bona fides and honesty with
which he acted.
158 CASteS IN CHANCfiitY.
1862* This case is free from the difficulty which has sonie-
Clabkb times occurred of defining the extent to which the maxim
Mackintosh Caveat emptor should be applied. Lord Thurlow, in the
Mackintosh ^ase of Lowndes v. Lane (a), said that, for the sake of
CtARKB. certainty in the transactions in this Court, he should be
Judgment, willing to carry that maxim to a great extent ; and he
held the purchaser bound to a contract, notwithstanding
a misrepresentation by the vendor^^ as to the yearly pro-
duce of woods, because the purchaser, not relying on the
representation, had sent his own surveyors to inquire.
But, where there was an actual misrepresentation as to
tithes against which the purchaser had no opportunity of
guarding himself, relief was given. The true principle,
stated by Lord Holt, was adopted by Lord Tenterden in
the case of Dobell v. Stevens (i), and it is this, " If the
vendor gives in a particular of the rents, and the vendee
says he will trust him and inquire no further, but rely on
his particular, then, if the particular be false, an action
will lie." In the present case the purchasers did not rely
on the representations of the vendor, but inquired for
themselves, and were supplied with all fair means of
prosecuting their Inquiry. After that inquiry they
deliberately entered into the contract, and they must be
decreed specifically to perform it, and to pay the costs of
the original, suit. The cross bill by the purchasers must
be dismissed with costs.
(a) 2 Cox, 363. {b) 3 B. & C. 625.
GASES IN GHANCERT. 159
186S.
PRIDEAUX V. LONSDALE. ^tSs!'
TA setUement
HIS bill was filed by Thomas Prideaux against the ™*do by a
/. 1 1111 . .«v, 1 woman of her
trustees of a settlement^ executed by the plaintiff's late personal pro-
wife, prior to her marriage, and against her next of kin eng^ementto
at her decease, and as amended it prayed as follows : — be marpied set
* -^ aside at the
1. That it might be declared that the settlement, dated suit of the
the 11th May, 1859, ought, under the circumstances, to although he
be deUvered up to be canceUed. IlT^ajT
2. That it miffht be declared that, under the circum- *bat she had
executed a
stances, the transfer by the defendant Moulton of the sum settlement
of 1101/. \Ss. 6rf. Three per Cent. Reduced Annuities, pr^rty. ^t
into the names of the said Lucy Mills Lonsdale, Robert ^l^gS^^gge*^**
Edward Lonsdale, and Richard Maitland Mills, was a herself nor her
breach of trust by the said Richard Moulton. accurately in-
3. That R. E. Lonsdale, and R. M. Mills, might be ^^^^t'
decreed to transfer into the name of the plaintiff the sum f®^ ^^i^
^ trusts of the
of 1101/. 18ff. 6d, Reduced Annuities, standing in their settlement-
names, and in that of Lucy Mills Lonsdale, deceased, doctrine of
with all dividends accrued thereon, and that in the mean- notice of*the
time the same might be secured in this Court, or that contents of an
the defendant Moulton might be decreed to transfer a wasnotsuffi-
like sum into the plaintiff^s name. ?he°huBba?d^
The amended bill stated that the plaintiff for more than ^? ^^c ground
of acquies-
eighteen months prior to April, 1859, was engaged to be cence.
married to his late wife ; and such engagement was known of tiw truS,**'*
to the defendant Richard Moulton. The celebration of ^' ?*f.'®P'V
sentation of a
the marriage had been delayed, waiting for an increase of material fact,
income to enable him to maintain his wife; but they any contract
were accepted and known as engaged persons. Early in ^^^y ^f
April the plaintiff was informed by his late wife, that a ^bich depends
upon the truth
considerable sum of money had been left her by Mr& and accuracy
Child, who died on the 10th March, 1859 ; and thereupon ^en^uirrn"
the plaintiff obtained his late wife's consent that the ^^chitwas
^ made.
TOL. IT. M
160
1863.
Przdrauz
V.
LOVBDALS.
Statement.
OASES IN GHA5CERT.
marriage should take place the following June. The
plaintiff then understood from his late wife that there
was a legacy of 1000/.» and also a share in the remduary
property of Mrs. Child. In the month of May the
plaintiff was^ in the course of conversation, informed by
his intended wife that her money, meaning the legacy,
had been invested in the funds, and that she had been to
the defendant Moulton, who is a law stationer, and one
of the two executors of Mrs. Child's will, and signed
some document, the effect of which she was informed by
Richard Moulton was to prevent her brother, the defen-
dants Lonsdale, troubling her for money, and her spending
it without the intervention of her uncle, Mr. Christopher
Lonsdale, the other executor. The plaintiff was on terms
of intimacy with the defendants, B. M. Lonsdale, C. and
W, J. Lonsdale ; and not wishing to interfere between
his intended wife and brothers, made no enquiries of her
about the matter.
The plaintiff and his wife, in pursuance of their en*
gagement, were married on the 16th July, 1859.
In October, 1859, the plaintiff was requested by his
wife to go with her to receive her dividend on the funds,
representing her legacy under Mrs. Child's will, the
dividends of which were then payable; and with a view
to obtain such dividends the plaintiff and his wife
attended at the Bank of England, the plaintiff's wife
having the same day handed to him a stock receipt for
1101/. I8s. 6d. Three per Cent. Keduced Annuities. On
attending at the Bank and producing the receipt the
plaintiff, for the first time, ascertained that the said sum
was standing in the names of his wife, and the defendants
B. E. and B. M. MUls, and he immediately told his
wife that this mode of investment of her money seemed
a bad arrangement, and one to which he objected. The
plaintiff's wife shortly afterwards told him that she had
been to Mr. Yetts, who, the plaintiff knew, had been her
CASES IN CHANGERT.
161
solicitor previously to her marriage, with a view of
getting it altered, and had asked him to make a will for
her, giving the stock to her husband ; but Mr. Yetts told
her it was not necessary for her to make such a will, as,
of course, the stock would be his on her death, if he sur-
yived her. The plaintiff was satisfied with this explana-
tion, and made no further inquiry on the matter, feeling
satisfied that his wife's property could not be dealt with
without his sanction, and that his interest in it was safe.
On the 17th February, 1860, Mr. Christopher Lons-
dale, the uncle of the plaintiff's wife, who was one of the
executors of Mrs. Child's will, met the plaintiff and his
wife for the purpose of paying her the balance of her
share in the residue of Mrs. Child's property, and stated
the amount to be 146/. 16^. le/., and gave them a state-
ment of the residuary account, and asked them to sign a
joint receipt for the sum of 146/. 16«. Ic?., and on such
receipt being signed by the plaintiff and his wife, Mr. C.
Lonsdale gave her a cheque for 146/. 16^. Id. The plain-
tiff then stated he understood his wife had signed some
document, and asked the nature of it. He gave no ex-
planation about it, and said Mr. Moulton had it. The
payment and receipt given as above confirmed the plain-
tiff's belief that nothing could be done with ihe said stock
without his sanction, and that his interest was safe ; and
from the communication made to him by his wife of what
Mr. Yetts had said to her, he did not then think it
necessary to make any further inquiries about the said
document.
The plaintiff's wife died on the 30th January, 1862,
without children. The plaintiff invited to the funeral,
among other relatives of his wife, the defendant B. E.
Lonsdale, and after it was over R. E. Lonsdale asked the
plaintiff if there was any will by his late wife as to the
disposition of the property, of which he was trustee,
uiider a document executed by her. The plaintiff replied
n 2
1863.
pRIDBAirX
V,
LONSDAXiB*
Statement*
162
CASES IN CHANCERY;
1863.
PJtIDBAUX
. V,
XONSOALB.
Siatemeni*
he did not know that there was any will^ or that any will
was necessary^ and that he understood from his wife the
document was to protect the money from the influence of
her brothers ; however, he said he would see Mr. Moul-
ton, and ascertain the nature of the document, an^, if
necessary^ consult his solicitor.
A few days afterwards the plaintiff called on the de-
fendant Moulton^ who stated^ in answer to the plaintiff's
inquiry whether it barred his rights in the property,
that, unless his wife had left a will, he considered it
would. The defendant Moulton said the document had
remained in his hands until the day after the funeral,
when he had handed it over to the defendant B. E. Lons*
dale, who had deposited it with Mr. Jennings* solicitor.
He, Moulton, accompanied the plaintiff to Mr. Jennings,
solicitor, who read it to the plaintiff, and promised to
send him a copy, which he did a few days afterwards.
The settlement was as follows: —
" This indenture, made the 11th day of May, A.D.
1859, between Lucy Mills Lonsdale, of No. 4, Beaufort
Street, Chelsea, in the county of Middlesex, spinster, of
the one part, and Kobert Edward Lonsdale, of No. 26,
Old Bond "Street, in the said county, music seller, and
Richard Maitland Mills, of No. 140, New Bond Street,
in the said county, music seller, of the other part.
Whereas the said Lucy Mills Lonsdale has lately trans-
ferred into the joint names of herself and the said Robert
Edward Lonsdale and Richard Maitland Mills the sum of
1101/. 18^. 6d., 3/. per cent Reduced Bank Annuities,
and the same is now standing in their names in the books
of the Governor and Company of the Bank of England,
as they the said Lucy Mills Lonsdale, Robert Edward
Lonsdale, and Richard Maitland Mills hereby admit and
acknowledge. And whereas the said Lucy Mills Lonsdale
-CASES IN CHAMCEBT.
iff deeiroos that such trusts should be declared of the
said sum of 11012. 18«. 6d. 3L per cent. Beduced Bank
Annuities as are hereinafter contained. Now this inden-
ture witnesseth that^ in pursuance of the sidd desire of
the said Lucy Mills Lonsdale, it is hereby declared and
agreed by and between the said parties hereto that they
the said Lucy Mills Lonsdale, Bobert Edward Lonsdale,
and Bichard Maitland Mills shall stand possessed of and
interested in the said sum of 1101/. ISs. 6cL, 3/. per cent.
Beduced Bank Annuities, and the interest and dividends
thereof upon trust, either to permit the said Lucy Mills
Lonsdale during her life to receive the said dividends on
the said Bank Annuities as the same shall become due
and payable, or for the said Bobert Edward Lonsdale
and Bichard Maitland MiUs to receive and pay the same
to the said Lucy Mills Lonsdale for her own absolute
use, and whose receipt for the same, notwithstanding any
future coverture, shall be a sufiBcient discharge to the
person or persons paying the same ; and, from and after
the decease of the said Lucy Mills Lonsda^e^ they the
said Bobert Edward Lonsdale and Bichard Maitland
Mills, or other the trustee or trustees for the time being
of these presents, shall stand possessed of and interested
in the said sum of llOl/. ISs. 6d. SL per cent. Beduced
Bank Annuities, and the dividends and interest to become
due in respect thereof, upon and for such trusts, intents,
and purposes as the said Lucy Mills Lonsdale shall, not-
withstanding any coverture, by deed, will, or codicil duly
executed and attested, give, devise, or appoint, and in
default of any such gift, bequest, or appointment, and
so &r as any such shall not extend, in trust for such
person or persons as, under the statutes for the distribution
of the effects of intestates, would have become entitled
thereto at the decease of the said Lucy Mills Lonsdale,
if she had died possessed thereof intestate and without
168
1S68.
Pridkaux
V,
Lonsdale.
Statement,
Siatement,
164 * CASES IN CHAKCBRT.
J8^ having been married : such persons^ if more than one^ to
take as tenants in common in the shares in which they
would be entitled under the same statutes. And it is
hereby declared that^ notwithstanding the trusts afore-
said; the said Robert Edward Lonsdale and Richard
Maitland Mills^ and any trustee or trujstees to be appointed
in his or their place^ on any previous request in writing
for that purpose, by her the said Lucy Mills Lonsdale^
and, whether she shall be covert or sole, shall join with
her in transferring or disposing of all or any part of the
said trust premises to such person or persons, in such
manner, as she the sidd Lucy Mills Lonsdale shall, by
such requests in writing, direct or appoint Provided
also, and it is hereby declared that, in case of the death
of either of them, the said Robert Edward Lonsdale or
Richard Maitland Mills, before the trusts hereby reposed
in them shall be fully performed, or their or either of
them desiring to be discharged from the aforesaid trusts,
it shall be lawful for, and the said Lucy Mills Lonsdale
is hereb]^ authorized and empowered to nominate and
appoint a trustee or trustees to supply the place of them
or either of them so declining or becoming incapable to
act ; and thereupon the trust funds shaU be transferred
wO and vested in such newly-appointed trustees, jointly
with the trustees hereby appointed, or in the new trustees
solely, as the case may happen. Provided always that
the trustee and trustees hereby appointed or to be ap-
pointed in manner aforesaid, their heirs, executors, or
administrators, shall be answerable for their own respec-
tive acts, receipts, and defaults only, and shall be at
liberty to retidn and allow to each other their reasonable
costs and expenses incurred in and about the execution
of the trusts hereby reposed in them, and the powers and
discretion hereinbefore vested in the trustees herein
named shall be exercisable by the trustees or trustee for
the time bemg of these presents* In witness whereof
statement.
CASES IN GHANOERT. 166
the 8ud parties to these presents have hereunto set their ^^
hands and seals^ the day and year first above written. Przobaux
LOVSDALB.
[Attested by B. Moulton.]
" LucT Mills Lonsdale.
[Attested by Christ. Lonsdale.]
'' Robert Edward Lonsdale.
[Attested by Christ. Lonsdale.]
" BiCHABD Maitland Mills (L.S.)"
The bill^ as amended^ alleged and charged that until
the death of his wife the plaintiff was wholly ignorant of
the existence of such a settlement^ and has not been able
to find, and does not believe there ever existed a copy of
the settlement, or that his late wife ever was furnished
with any. She never made any communication to the
plaintiff on the subject, except as to some document she had
signed to protect her from her brothers. The said Cliris-
topher Lonsdale and Bichard Moulton were the executors
of Mrs. Child. The bill alleged, that in matters relating to
Mrs. Child's will the pliuntiff 's wife was under the influ-
ence of C. Lonsdale and B. Moulton. *^ That the settle-
ment was wholly prepared by B. Moulton, and engrossed
by him.'' That the obtaining the execution of the settle-
ment was a fraud upon the inchoate marital rights of the
plaintiff. That the plaintiff's wife, on the occasion of the
execution of the settlement, was without any legal ad-
viser, and was herself wholly inexperienced in business,
although B. Moulton then well knew that Mr. Yetts was
.then generally acting as her solicitor and legal adviser.
That the recital in the alleged settlement that the plain-
tiff's wife had then lately transferred into the names of
166
€A8ES IN CHANCERY.
1863.
PrideauX
V,
LONSDALB.
Statement,
B. E. Lonsdale and R M. Mills, the sum of I lOlf. ISs. 6d.,
was and must have been known to be untrue to the de-
fendant B. Moulton, who inserted such recital in the
alleged settlement. The stock was part of the sum of
1300/. Three per Cent. Beduced Bank Annuities, standing
in Mrs. Child's name on her death, and was transferred by
her executors^ C. Lonsdale and B. Moulton, into the
names of the plaintifPs wife and the trustees of the
alleged settlement. That such transfer was, under the
circumstances, a breach of trust on the part of B. Moul-
ton. That, though the alleged settlement was prepared
and engrossed by B. Moulton, and retained by him after
its execution, he never communicated its existence to the
plaintiff during his wife's life. That the persons who,
under the Statutes of Distribution, would have became
entitled are her brothers, B. M. Lonsdale, C. Lonsdale,
and W. J. Lonsdale.
The plaintiff subsequently consulted his solicitor^ who
wrote to the defendants B. M. Mills and B. E. Lons*
dale on the 14th February, 186 , demanding the delivery
up of the settlement and the transfer of the fund, on the
ground that the deed was executed without the plaintiff's
knowledge or sanction, and in violation of his marital
rights,^rttid that he never was made acquainted that there
was any instrument to affect his rights until after the
death of his wife. In reply to this demand Mr. B. M.
Lonsdale wrote as follows : — " As my sister left no
children, I feel at present disinclined to waive any right
that I may have to any portion of the fund." Mr. C.
Lonsdale said, " I do not feel justified in waiving any
cldm I may have." Mr. J. Lonsdale joined in his
brother's determination.
Letters of administration of his wife's estate were
subsequently granted to the jjlaintifft
' The material evidence on belialf of the plaintiff* con-
OASES IN CHANCERY.
sisted of the affidaidt of the plaintiff^ which was gene-
rally to the effect of the allegations on the bill^ and of
two affidavits of his solicitor^ Mr. Yetts. In the 7th para-
graph of his affidavit the plaintiff deposed as follows: —
7. " That in May, 1859, 1 in the coarse of conversation
was informed by my intended wife that her money, i>.
the legacy, had been invested in the funds, and that she
had been to the defendant Moulton, and signed some
document the effect of which was, she was informed
by Moulton, to prevent her brothers (the defendants)
troubling her for money, and her spending it without
the intervention of her uncle Mr. C. Lonsdale. '
8. '* I was on terms of intimacy with the defendants,
and, notwishing to interfere between my intended wife and
her brothers, made no inquiries of her about the matter."
10. "In October, 1852, I was requested by my wife
to go with her to receive the October dividend on the
legacy under Mrs. Child's will, and she handed me a
stock receipt for 1101/. ISs, 6d. Three per Cent. Reduced
Annuities. (11.) On attending at the Bank and pro-
ducing the receipt I for the first time ascertained that the
said sum of 1 lOlZ. ISs. 6(L Seduced Annuities was standing
in the names of my wife and of the above-named defend-
ants B,. E. Lonsdale and B. M* Mills, and I immediately
told my wife that this mode of investment of her money
seemed a bad arrangement, and to which I objected."
12. " My wife shortly afterwards told me she had been
to Mr. Yetts with a view of getting it altered, and she
asked him to make a will for her, giving her stock to her
husband, but that Mr. Yetts had told her it was not
necessary for her to make such a will, as of course the
stock would be her husband's on her death if he survived
her. I knew that Mr. Yetts had been my late wife's
solicitor before her marriage.
13. '^ I was satisfied with this explanation, and made
167
1S68.
Pridbaux
V.
LOKSDALK.
^iatement.
168
OASES m CHANOEBT.
Pridbaux
V.
L0N8DAZIB.
StatemmUt
no further inquiry on the matter^ feeling satisfied that
my wife's property could not be dealt with without my
sanction^ and that my interest in it was safe.
14. " On the 17th February, 1860, Mr. C. Lonsdale
(one of Mrs. Child's executors) called to pay my wife
the balance of her share of the residue under Mrs. Child's
will, and gave us two papers, and asked us to sign a
joint receipt for the sum of 146/. 16«. 4cf., and on such
receipt being signed gave my wife a cheque for that
sunu I then stated to Mr. C. Lonsdale that I under*
stood my wife had signed some document, and asked the
nature of it. He gave no explanation, and sud that
B. Moulton had it"
20. '< I, until after the death of my late wife, was
wholly ignorant of the existence of such settlement, and
though I have diligently searched have been unable to
find, and I do not believe there ever existed, any copy of
such settlement 'among the papers of my late wife, and I
do not believe she was ever furnished with any copy or
abstract of the settlement, and she never made any com-
munication to me on the subject of the said stock other
than herein mentioned."
21. '^ C. Lonsdale and B. Moulton, the attesting wit-
nesses to the settlement, were the executors of Mrs. Child^
and were trustees for my late wife, and she was under
their influence in all matters relating to her interests
under the wilL"
22. '^My late wife, on the occasion of the alleged
settlement, was without any legal adviser, although^ as the
defendant Richard Moulton and C. Lonsdale then well
knew, Mr. Yetts was then generally acting as her solicitor
and legal adviser; and she was herself wholly inex-
perienced in legal matters."
Mr. Yetts, the plaintiff's solicitor, also deposed that he
had acted for the family of Mrs. Frideaux. That in
CASES IN CHANCERY.
16»
Aprils 1859^ Mr. C. Lonsdale jocosely observed that her
legacy had soon brought Mrs. Prideaux a husband. That
on the 19th November^ 1859^ Mrs. Prideaux called on
me, and stated she had to consult me about making her
will, as she wished to leave the legacy, which she had
derived under Mrs. Child's will, to her husband. I stated
to her that a married woman could not make a will ; and
that on her death, what stock was standing in her name
would belong to her husband. These remarks were
made under the impression that no settlement had been
made prior to her marriage. But, in order to arrive at a
safe conclusion upon the subject, I asked her if she had
executed a settlement prior to her marriage. To this she
answered she had not done so. I then asked her if she
had signed any memorandum or other document, when
she stated that she had, prior to her marriage, signed
some writing or memorandum prepared by Mr. Moulton,
the object of which was to protect her money from her
brothers. I then said I could not advise her further
without seeing this document, and I requested her to
borrow it of the said Richard Moulton, and let me see it.
This she promised to do, and I was under the impression
she left the office for that purpose. The said late plain*
tiff's wife not having called upon me again as I had ex-
pected, in about a week or ten days from the time she
was in my office I called on the said Richard Moulton at
his said office, and I then mentioned to him that Mrs.
Prideaux, the plaintiff's late wife, had requested me to
make her wiU, and he asked me why I did not do so. I
said my reason for not doing so was, that a married woman
could not make a wiU ; but that she had informed me she
had signed some document prepared by him, and which
he had, and that it was necessary to see it before I could
advise her upon the subject That I had requested her
to caU upon him for a loan of the document to let jne see
1863.
statement.
176
1863.
Pbidbaux
V,
LOKSDALB.
Statement*
CASES IN CHANOERT.
it^ and I had not since seen her upon the subject. The
only answer he made was that he had not seen her^ and
he never offered either to produce the document or to
give any explanation upon the subject^ and that interview
terminated.
4. « On the 14th day of February, 1862, 1 called at
the said office of the said Richard Moulton, and asked him
who prepared the deed, of which a copy is set out in the
17th paragraph of the bill in this suit, when he said a
solicitor prepared it by his direction, and he altered the
draft; and that the object of the deed was to prevent the
brothers of the plaintiff's late wife getting the money.**
Henry Muskett Yetts, a son of the last witness, de-
posed as follows : —
2. "I well remember Lucy Mills Prideaux, in the
pleadings of this cause named, calling at the office of the
said Joseph Muskett Yetts on the 1 9th of November,
1859, and while I was preparing to leave the room, aa
was usual on such occasions, the said Lucy Mills Pri-
deaux stated in my presence that she had called to con-
sult my father about making her will, as she wished to
leave the legacy which she had derived under Mrs.
Child's will to her husband. In reply to which I heard
my father tell her that a married woman could not make
a will, and that it was not necessary for her to do so, as
her husband would, of course, be entitled to the stock on
her death if he survived her."
Richard Maitland Lonsdale, Charle:^ and William
James Lonsdale, three of the defendants, put in a joint
and several answer to the amended bill. They denied
that the plaintiff had been engaged to be married for
eighteen months prior to the marriage, and alleged that
the marriage was a surprise to all the friends of the
plaintiff's late wife.
They admitted, in the answer to the original bill, that
Statemmi.
CASES IN CHANCERY. 171
the settlement had been suggested^ engrossed, and pre* 1B68*
pared by the defendant Moulton, and that the matter was Paidbaux
discussed at a meeting between Christopher Lonsdale, lo!I8dax.x,
Bichard Moulton, and the plaintiff's late wife ; but that
she was not advised by any independent solicitor. The
trustees, R. E. Londsdale and R. M. Mills, by their
answer, denied that improper influence was used. They
alleged they were unable to say whether the legacy had
been in the name or power of the plaintiff's late wife.
They alleged they declined to transfer the fund to the
plaintiff on account of the conflicting claims.
Richard Moulton, in his answer to the original bill,
from his belief, denied that the pliuntiff was wholly igno-
rant of the existence of a settlement. He admitted tha^
the plaintiff's wife never had a copy of the settlement^
but alleged she was perfectly acquainted with the powers
under it He denied that he had reason to suppose that
the plaintifl^s late wife was about to be married, or that
the settlement was prepared with reference to such mar-
riage. He admitted that the stock never stood in the
name of the plaintiff's late wife alone, and that the settle-
ment was retained by him, and never communicated by
him to the plaintiff, or to Mr. Yetts, or to any person on
the plaintiff^s behalf. In his affidavit, filed on the 16 th
January, 1863, Mr. Moulton deposed (paragraph 7) that
the plaintiff's late wife never, after the execution of the
settlement, requested him to show her the deed of settle-
ment, nor ever made any communication to him on the
subject.
Paragraph 8 was as follows : — " I say that, to the best
of my knowledge and belief, the said Joseph Muskett
Yetts did not, as mentioned in the 3rd paragraph of his
affidavit, call at my office, nor mention to me that the
plaintifi^s late wife had requested him to make her will;
nor did I ask the said J* M. Yetts why he had not done
172
.CASES IN CHANCEBT.
lees.
.statement*
SO ; nor did he infonn me that his reason for not doing so
waS; that a married woman could not make a will ; nor
that she had informed him she had signed some document
prepared by me. Nor did J. M. Yetts say it was neces-
sary to see it before he could advise her on the subject
Nor did he say that he had been requested by the plun-
tiff 's late wife to call on me for a loan of the document,
to let him see it ; nor that he had not since seen her on
the subject. Nor did I reply that I had not seen the
plaintiff's late wife ; nor did the said Yetts^ at any time>
ask me to produce the document, or ask me for any ex-
planation on the subject. For I say that, if the said
Yetts had done so, as he was then acting occasionally as my
solicitor, and as the solicitor of Mr. C. Lonsdale, I should
not have hesitated to let him see the said document."
Argument. Mr. Bacon and Mr. Batten, for the plaintiff.
There are two grounds on which this settlement ought
to be set aside.
First, because when Mrs. Prideaux executed it she
was neither properly advised, nor made aware of the
effect of her act, which was a most improvident one.
Secondly, because it was a fraud on the marital right of
the plaintiff.
On the first point it was clear, from the evidence, that
Mrs. Prideaux had not had proper advice, although the
trustees of Mrs. Child's will well knew that Mr. Yetts
was her solicitor. She executed the settlement at the
bidding of Christopher Lonsdale and Moulton. It was
equally clear she was not aware of the effect of her act,
as she informed her husband that the fiind would become
his by survivorship. It was proved she had never had a
copy of the settlement. These grounds were sufficient in
this Court to invalidate any deed, and a marriage settle-
ment was no exception to the rule.
CASES m CHANCEBT.
173
On the second gronndj also^ of fraud on the marital
right, the settlement ought to be set aside. The treaij
of marriage was pending at the date of the deed. It was
admitted that no copy of the settlement had ever been
supplied to the plaintiff or his wife ; and it was proved
that all the husband was told was that some document
luid been executed, which did not affect his or his wife's
right. On all the cases this was enough to invalidate the
settlement.
In the Countess ofStraihmore v. Bowes (a), Lord Eldon
intimated that there might be a fraud on the marital right,
though he thought in that particular case, though there
was concealment, there was no fraud. " The husband
must not be cheated" {b). In Goddard v. Sn&w (c),
a woman, ten months before her marriage, but after
the commencement of that intimate acquiuntance with
her future husband which ended in marriage, made
a settlement of a sum of money, which he did not know
her to be possessed of. The marriage took place, she
concealing from him both her right to the money and the
existence of the settlement. Ten years afterwards she
died, and after her death he filed a bill to have the
money paid to him, and the Court held the settlement void
as a fraud on his marital right. In Tayhr v. Pugh (d),
it was laid down that it was not necessary, in order to
establish his right, to impeach a settlement that the
husband should prove actual fraud or deception, for de-
ception will be inferred if, after the commencement of the
treaty for marriage, the wife should have attempted to
dispose of her property without the knowledge or con-
currence of her intended husband*
In this case there was also this further circumstance,
that the deed recited that Mrs. Prideaux had transferred
ises.
Pbidbaux
V,
LoiiesAi*9.
Argument.
(a) iye8.jaxuS2.
(I) Ibid. p. 27.
(c) 1 Buss. 485.
\d) 1 Hare, 608.
174
186S.
PazDBAuac
LOVSDALB.
Argument.
CASES IN GHANGERT.
the fund to the trustees^ whereas she never had dominion
over the fund at all. In LewelUn v. Cobbold(a)j the
Court had held that the falsehood of the recitals in a set-
tlement on a material point was sufficient to invalidate
the deed.
[jBumAom v. Bennett (i) was also cited].
It would be contended that there had been acquiescence
on the part of the plaintiff, but it had been proved that
the plaintiff had not suchknowledge of the circumstances as
that he could be held to have acquiesced. It was submitted
that on these grounds the settlement ought to be set aside.
Mr. Malins and Mr. Fooks for the next of kin of the
plaintiff's wife, who were entitled to the funds under the
settlement.
This bill must be dismissed ; first, because the plaintiff
had not shown that the wife executed this settlement in
contemplation of marriage, and without the knowledge of
the plaintiff; and secondly, on the ground of the husband's
acquiescence.
On the first point, the case of Goddard v. Snow (o),
cited bj the plaintifi^s counsel, showed that there must be
concealment, which was not even pretended here. That
the husband knew that some document had been executed
was not disputed.
In Maber v. Hobbs{d), which much resembles this
case, a single woman transferred stock into the joint
names of herself and two trustees ; and on the day of
the transfer she and the trustees, without reference to
marriage^ executed a settlement, declaring the trusts, t.e.,
to pay the dividends to herself for life for her separate
(a) 1 S. & G. 376.
(b) 2 Coll. 254.
On the subject of settlements
seeSloeombev. 0Mb, 2 B. C. C.
645, and Dumford t. Lane^ 1
B. C. a 106.
(0) 1 Kuss. 485.
(rf) 2 Y. fc C. (Ex.) 817.
CASES IN CHANCERY. 175
use, independently of any husband she might marrji and J^^
after her death on such trusts as she, notwithstanding her
coverture, should by deed or will appoint. And in de&ult
for her, her executors, administrators, and assigns. She Argument.
afterwards married, and by a deed reciting the settlement
and executed by her and her husband, assigned the fund,
and it was held, though under the settlement she might
not .haye had power to make the assignment, it was
yalid.
In England v. Dawns (a), it was held that, though
wilful concealment from the husband would entitle him
to relief, yet there might be concealment, or rather
non-communication, " which was no fraud on the marital
right.'' That was the most that could be pretended in
this case.
In Si. George v. Wake (i), where a lady, pending a
treaty of marriage, which afterwards took effect, made
a voluntary assignment of part of her property to her
sister, it was held that the husband, who was, under the
circumstances presumed to have had notice of the assign-
ment before his marriage, was not entitled to set it aside
on the ground of fraud on his marital rights.
(^Soader v. Clark^c), was also cited.)
They also contended that there had been acquiescence.
Under these circumstances it was submitted that the
plaintiff was not entitled to the relief asked, and the bill
ought to be dismissed with costs.
Mr. Southgaie and Mr. Cracknall for Moulton.
This was not a bill against trustees for a breach of
trust, inasmuch as such a bill must seek relief against
both trustees. Then, how could it be sustained against
Moulton ? He was in that view a mere agent, and not
(a) 2 Beav. 622. (b) 1 M. & S. 610. {c) 2 M. k G. 382.
VOL IV. N
176
CASES IN CHANCERY.
1863.
Argument,
liable as such. Le Texier y. The Margramne of An-
8pach{a)\ Marshall -v. Sladden(b).
[^Reynell v. SpTye{c)y and Small v. Attioood{d)f were
also cited.]
On the question how far the settlement was valid against
the husband^ the case made bj the bill failed. The
settlement was not in contemplation of marriage^ for the
intended marriage was unknown to Moulton. With
respect to the recital^ as the property was stock it would
have been absurd to have transferred the fund to the
legatee in order to be again retransferred by her to the
trustees. The common form had been used.
[The Vice-Chancellob. — What evidence is there to
show she intended making a gift of her property to her
next of kin ?]
She was told by Moulton^ if she wished her husband to
have it she must make a settlement.
The true test was this, could she herself come to set
the deed aside? Certainly not; even if she did not in the
first instance fully understand the settlement, she clearly
adopted it. She had possession of the stock receipt;
she received the residue, and she and her husband gave a
joint receipt for the balance. It was too late now for the
husband, after having acquiesced in the settlement, to
seek to set it aside.
Mr. Bacon was heard in reply.
EQs Honour reserved judgment
Judgtnmt. The Vice-Chanoellob :—
The plaintiff seeks by this suit to set aside a settlement
made by his late wife after her engagement to marry him.
(a) 15 Yes. 159.
(b) 7 Hare; 428, 442.
(e) 1 De G. M. k G. 656.
{d) 6 Clk. k Tin. B62,
CASES IN CHANCERY.
He was not a party to the settlement, and he asks relief
on the groond that it has defrauded him of her personal
property, to which, by his marital right, he was entitled.
It has been argued that, because the husband was
told before the marriage that the ladj had executed
some instrument affecting the property in question,
he was bound to inquire into the nature of the instru-
ment, and is, therefore, fastened with a notice of its
contents, and is bound by acquiescence, so as to have
lost any right to set it aside. It is, however, impossible
to apply the doctrine of constructive notice to a case of
this kind. The information which the plaintiff received
as to the nature and effect of the instrument was in-
correct. Suppression of the truth or misrepresentation
of a material fact will vitiate any contract or gift the
validity of which depends upon the truth and accuracy of
the representations on which it was made. Acquiescence,
without full and sufficient knowledge and understanding
of the real nature and effect of the instrument, can be of
no avail.
It appears from the evidence that the plaintiff did not
know or understand the real nature and effect of the
instrument at any time before the death of his wife ; and
it also appears that the wife herself never perfectly under-
stood the effect of that ultimate trust which deprived the
plaintiff of his marital right. Nor is there anything
to shew that the persons who under that ultimate trust
now claim to be entitled to the property, were under-
stood or intended by her to be objects of her bounty, to the
exclusion of the rights of her husband. This ultimate
trust could not have prevailed against children of the
marriage, and it is not easy to see how the fact that there
has been no child of the marriage can make such a trust
in favour of mere volunteers valid against the surviving
husband. There must be a decree declaring that the
settlement is invalid, and ought to be delivered up to be
VOL. IV, N 2
177
isaa
Pbxdxaitz
loksdalb.
Judgmtnt,
178
GA8E8 IN CHANCERT.
1808.
Pbzobauz
V.
L0N80ALB.
cancelled^ and that the defendant pay to the pluntiff the
costs of the suit
As to the defendant Moulton, it has been argued that
he is improperly made a defendant, and that the pbiintiff is
not entitled to any relief against him. It is true that he is
not named as a party to the deed which has intercepted the
marital right; but the property of which the plaintiff is de-
prived by the deed was a legacy under a will, of which the
defendant Moulton was the executor. He was the adviser
and framer of the deed. The recital of the transfer of this
legacy by the plaintiff's wife into the names of the trustees
of the deed, is not a true and accurate recital. He framed
the ultimate trust which has excluded the marital right
of the plaintiff, and is a voluntary trust in favour of
persons whom neither the wife herself nor the plaintiff
knew to be an object of her bounty. Ejiowing the real
nature of the deed, and not having any right to the
custody of it, he kept it in his own repositories, and never
communicated its nature or contents td the plaintiff,
whose rights were so materially affected by it. It ap-
pears that he never informed the plaintiff's wife, whom
he procured to execute this ultimate voluntary trust, of
its real nature and effect Throughout the whole trans-
action he was more an actor than an agent His conduct
has been mainly the occasion of this litigation, and, under
these circumstances, the plaintiff is entitled to a decree
against him and the other defendants for payment of the
costs of the suit.
CASES IN GHAIfG£RT« 179
Be SAUNDERS'S ESTATE.
1868.
SAUNDERS V. WATSON. ^^-^T.
Jan, 16fA.
Alfred SAUNDERS, in November and December, a yoinntary
1860, committed acts of embezzlement by misappro- JJ^SSSS"*'''
priating <^rtain monies belonging to the Corporation of ^^^* ^^
^_ -- 00 ented in laTonr
Melbourne. of « wile and
B7 an indenture dated the 23rd May, 1861, between e^^^^jf^
Alfred Saunders of the one part, and John Browning J„f J^ ^^^^^
and William Jones of the other part, A. Saunders as- in fear of con-
signed to the said Browning and Jones all his share and Beid inr%iid
interest under the will of his father, upon trust, imme- ^^^ ^*
diately on the receipt of the same, to invest it in Gbvem-
ment or real securities in Victoria, and to pay the interest,
dividends, and annual proceeds thereof to his wife for the
term of her natural life, and, from and after her decease,
to divide the same among his children absolutely.
At the date of the deed A. Saunders was resident at
Melbourne. His &ther died in 1860.
On the 8th June, 1861, Alfred Saunders was arrested
on a charge of embezzlement, which, by the law in force
in Melbourne, is a felony. On the 21st June, 1861, he
waa convicted, and sentenced to a term of imprisonment.
A bill had been filed to administer the estate of the
settlor's &ther, and A. Saunders's share had been carried
to his separate account, or to the account of the parties
entitled. A petition was now presented in the cause by
the trustees for payment of that share. The petition
contained the following allegation : —
*' Prior to his conviction and apprehension, the said
A. Saunders offered and proposed to the Corporation of
Melbourne, whp subsequently arrested and prosecuted
180
18G3.
lie
Saondbrs'8
Estate.
SAU5DBS8
V.
Watsow.
Argument,
CASES IN CHANCfiRY.
him, that, upon receiving the money coming to him in
this suit, he would pay and make good the monies which
had been used or appropriated by him belonging to the
Corporation."
Mr. Greene and Mr. Talfourd Salter now appeared for
the petitioner, and aaked for pajrment to them of the
fund.
Mr. JVickens. — An assignment by a person changed
with felony, and subsequently convicted, is void as against
the Crown: Marewood v. Wilkes (ja). In this case it was
clear that the settlement was made in contemplation of
conviction, and was therefore void.
Judgment. The ViCE-ChaNCELLOR : —
The question is whether the settlement of the 23rd
May was executed in order* to defeat the right of the
Crown to the personal property of the felon. K the
date mentioned in the indictment is correct, the act of
felony was committed before the execution of the deed.
It has been argued that the date in the indictment was
immaterial, and that the prisoner might be convicted on
any act committed before the trial. It may be in a sense
inunaterial ; but only in the sense that it might have been
shown to be false by those who allege that it is so. I
think, the date mentioned in the indictment must be ^nm^
facie evidence of the true date of the act. The petition
moreover states an offer to pay the money, which must
have been made before the settlement. I assume, there-
fore, that the actfl committed were before the date of the
settlement ; and if the deed was executed in apprehen-
sion of a conviction it was clearly fraudulent The
petition must be dismissed, so far as it seeks payment of
(a) Car. & P. 14A.
CASES IN CHANCERY.
the fund in court to the trustees of the settlement of
Mbj, 1861, and it must be declared that that settlement
is invalid. The costs of all parties to come out of the
fiind in court, and the balance to be transferred to the
Solicitor of the Treasury and the Assistant Paymaster
for«the time being.
181
ises.
JudgmMHt.
ENO V. TATHAM.
X HIS was a suit by the infant son of the testator against
the testator's widow, his executrix and residuary legatee,
and her second husband, for the administration of his, the
testator's, estate, and praying also that it might be de-
clared as between the infant and the testator's widow,
that the personal estate was primarily liable to the pay-
ment of a mortgage debt for 1700/. and interest, and that
the personal estate might be applied in payment of such
mortgage debt
The testator, Hildred Eno, by his will, dated the 11th
November, 1867, having appointed his wife, Harriet Eno,
his executrix, and William and Isaac Sykes to be his
trustees, made the following disposition as to his per-
sonal estate : —
** I give my household goods, live and dead stock, and
other my personal estate and effects whatsoever and
wheresoever, unto my wife absolutely, subject to the pay-
ment of my debts, funeral and testamentary expenses."
The testator then devised all his real estates to the said
William and Isaac Sykes, upon trust to let the same^ from
year to year, or for any term not exceeding seven years,
January 10.
A bequest of
all testator's
personal estate
to his execu-
trix, subject
to the payment
of hi8 just
debts and
funeral and
testamentary
expenses, was
held, on the
construction of
theActl7&lS
Vic. c. 113,
a sufficient
manifestation
of an intention
that a real
estate was
not to be pri-
marily liable
to a mort-
gage debt.
WooUteri'
croft Y. Wool'
gtencroft
distinguished.
182
jcases in ghangert.
1863.
Eno
V.
TATB41C.
statement*
provided his wife should so long live^ and upon trust to
stand possessed of the rents and profits thereof, in trust
for his wife for life ; and from and after her decease, upon
trust to sell the same, and to stand possessed of the monies
arising irom such sale, for the benefit of his brothers and
sisters, nephews and nieces.
Bj a codicil to his will dated the 6th May, 1859, the
testator, after reciting that his wife, since the making of
his will, had borne him a son, declared that all his real
estates, from and after the decease of his said wife^ should
be held by his trustees upon trust, in the events which
had happened, for his said son and only child, the plain-
tiff, Hildred AUis Eno, absolutely.
The testator died on the 2nd September, 1859, without
altering his will and codicil. William and Isaac Sykes,
the trustees named in the will, disclaimed the trusts; no
other trustees had been appointed.
At the date of his decease the testator was seized in
fee simple of certain real estate at Stickney, in Lincoln-
shire, which he had mortgaged for 1700/., which mortgage
was still subsisting.
In January, 1860, Harriet Eno, the testator's widow
and executrix, married the defendant William Tatham.
Under an order of the Court Mrs. Tatham appeared
separately from her husband.
Argument* Mr. Schomberff for the plaintiff. — But for the dictum of
Lord Campbell in WooUtencroft v. WooUtencroft (a) the
question suggested on this will could not have arisen.
The statute 17 & 18 Vic, c. 113, merely enacts that in
order to relieve the real estate from mortgage debtfl,
which the rule of law made payable out of the personalty,
there must be an intention shown that the land should
not bear such charge. This was the *' contrary intention"
(a) 2De6.J.dcF.347.
Argument.
CASES IN CUANGEBT. 183
mentioned in the act In this case the testator bequeathed ig^.
all hia personal estate to his executrix^ subject to the pay-
ment of his just debts. Was not this> then, an intention
that his debts were to be paid out of the personal estate ?
But Lord Campbell said {a), " the same rule should
now be observed with respect to exempting the mort-
gaged land from the payment of the mortgage money as
was before observed with respect to exempting the per-
sonal estate, the mortgaged land being now primarily
liable, as the personal estate had been liable previously."
The old rule to which Lord Campbell referred was, that
in order to exonerate real and personal estate there must
be in the will not only an intention to charge the real
estate with the debts, but to exonerate the personal estate
from those debts.
But, first, this was a mere dictum not necessary for the
decision of the case which the Lord Chancellor decided,
on the ground that under the will the executor had the
power of selling a competent part of the real estate for
the payment of debts. But, secondly, the Act of Parlia-
ment required no such language in the will as that sug-
gested by Lord Campbell. All the Act required was a
contrary intention, however manifested, and, therefore,
to adopt the view contained in the Lord Chancellor's dic-
tum would be to introduce something not required by
the Act
In Mellisk v. Vallim (J) Vice-Chancellor Wood declined
to act on Lord Campbell's dictum, and that case was
identical with this, except that in that will the testator
used the words all his just debts.
It was submitted, therefore, that here the contrary in«
tention was sufficiently shown.
[WUbon V. Newman {c)f before the Master of the Rolls,
was also cited.]
(a) Ibtd« 3o0. (c) 31 Beav« 33.
iP) 2 J. & H. 194.
184
CASES IN CHANCERY.
1863.
Eno
V.
Tathav.
ArgummU
Jutfyment
Mr. Martindak, for Mrs. Tatham^ cited Smith t.
Smith (a).
Mr. Bacon and Mr. Bedwell for Mr. Tatham.
This case was not distinguishable from Woobtencroft v.
Woolstencroft (J), in which the Court of Appeal has ex-
pressly decided that nearly the same words were not suf-
ficient to indicate the contrary intention specified in the
Act^ in order to exonerate the real estate. In that case
the gift was of all his personal estate to his executrixi
whom he directed to pay all his debts out of his estate.
Here there was a gift of all his personal estate to his
executrix^ subject to the payment of all his debts. The
meaning of both wills was substantially the same. If the
mere bequest of personalty subject to payment of debts
were a sufficient indication of intention, the Act would
become inoperative. In Woolstencroft v. Woolstencroft
Lord Campbell said that the rule of law introduced by
the statute, as to personal estate, was the same that
previously prevailed as to real estate ; but if so, it was
clear that the language was insufficient to exonerate the
real estate.
The Vice-Chancellob : —
The difficulty in this case seems to me to turn upon
those particular words of the Act which say that the
** expression of any contrary or other intention " shall be
sufficient to show that the personal estate is primarily
liable. I have already (c) stated my impression as to
what Lord Campbell is reported to have swd
in the case of Woolstencroft v. Woolstencroft, My
impression certainly is that Lord Campbell had not
clearly in his mind what the rule was which was esta-
blished by the case of Bootle v. Blvndell{d), and by other
(a) 3 Qiff. 263. {d) 10 Yes. 618 ; 8. c. 1 Mer.
(b) 2 De G. P. k J. 351. 193, 216.
(o) 3 Giff. 276.
Judgmmt*
GASES IN GHANCERT. 185
cases^ as to the exoneration of the personal estate from }^\
the payment of debts. I do not think that anybody can
say that^ according to the law as settled by the case of
Baothe v. Bbmdell, the expression of ^' any other or con-
trary intention'' would exonerate the personal estate.
That is not the law of the Court
In the present case there is a gift to the wife of the
household goods^ and of all the personal estate subject to
the payment of debts. In the case before the Vice-
chancellor Wood^ which resembles this, except in the
transposition of the clauses, the direction extends to the
payment of all " debts. In the present case the direc-
tion is ^^ subject to the payment of my debts." But I do
not think anything can turn upon that small difference,
because, when a testator says ^' subject to my debts," he
means ** subject to all my debts." What the testator has
given here is, what remains of his personal estate after all
his debts are paid ; and I cannot come to any other con-
clusion upon the true construction of the gift of tlic
personal estate to this lady, than that what she is entitled to
is what remains of the personal estate after the payment of
all the testator's debts, funeral and testamentary expenses.
If she is to take the personal estate subject to the pay-
ment of all debts, this mortgage debt is one of the debts,
and I can find no ground for construing this gift so
to except this mortgage debt. The Vice Chancellor
Wood, in the case of Mellish v. Vallins, made this im-
portant observation — that one of the arguments relied
upon to induce the Legislature to pass the Act called
'* Mr. Locke Bang's Act" was the rule of construction
of this Court, that, if a testator gives an estate sub-
ject to a mortgage, unless he signifies a contrary or
other intention that was not sufficient to exonerate the
personal estate. Every one must see that such a con-
struction was a remarkably strong one to be arrived at
by these Courts ; but that construction was upheld by the
Judgment,
186 CASES IN CHANCERT.
1863. weight of authority. Lord Campbell's view of the con-
Eno struction of the Act eeems to me to go this length — that,
tathax. ^ ^ testator says^ '* I give all my personal estate to my
wife, subject to the payment thereout of all my debts,"
still the personal estate is not liable to the payment of a
mortgage debt I can come to no other conclusion upon
this Act of Parliament than that the words *' any con-
trary or other intention " must have their proper meaning ;
and if I find the expression of some intention con-
trary to the mortgage being a burden upon the mort-
gaged estate, I am bound by the language of the Act
This lady must take the personal estate, subject to the
payment of the debts, and she is not entitled to take
anything until she has paid the mortgage debt, which
is, therefore, not primarily payable out of the estate
upon which it was charged.
CiLBES IN CHAHOERT. 137
1883.
SWAINSTON V. CLAY. j««Tm*«4.
T
HE bill stated that in and preTioualj to October, 1860, ^^^ the
plaintiff ad-
Messrs. Brown & Briggs carried on business at Pallion, vanced moniei
near Sunderland, as shipbuilders, and continued to do so, p!^>^^f^on-
in partnership, until their bankruptcy on the 2nd June, •taction on an
1862. In October, 1860, Messrs. Brown & Briggs first theveMeiwai
became connected in business with the plaintiff, and be- to him^w^ch
fore the end of that year became indebted to him in a Slfttuch id^**
large amount for copper sheathing supplied to them for ▼^c^ ^^ to
the purposes of their business. In March, 1861, Mr. thevcBsel—
Fisher, of Barrow, in the county of Lancaster, ship- the'baS-'^"*
owner, applied to the plaintiff to obtain a contract with JSf *%^r.**
some builder for building a ship, and the plaintiff accord- while they
ingly entered into negotiations with Messrs. Brown & theveesei, she
Briggs for that purpose, which resulted in an agreement ojder Md ^»*-
in writing dated the 11th April, 1862, between Messrs. position of the
!• 1 /» bankrupta,
Brown & Briggs of the first part, and James Fisher of and that the
the other. The agreement was signed by the parties. fJ^uj^monieB
By such agreement Brown & Briggs agreed to build and *ot^^^^
sell, and James Fisher agreed to buy, a new schooner, to by the bank-
be built in the yard of Messrs. Brown & Briggs, of the '"^ ^'
dimensions specified therein.
Notwithstanding the agreement was not signed till the
11th April, 1862, Messrs. Brown & Briggs in fact com-
menced the building of the vessel while the negotiations
for the agreement were pending. Messrs. Brown &
Briggs, being unable to proceed with the said vessel for
want of fundsy applied to Mr. Fisher, before the date of
the agreement, to make them an advance, but unsuccess-
fully. They then applied to the plaintiff, who lent them
MOL, on the understanding that the repayment of the
same, with interest, to be secured as well by an assign-
188
CASES IN CHANCERY.
1883.
V.
CULY,
StatmnenU
ment of the said agreement, as soon as the same should
SwAiNSToir be duly signed and perfected, as by a lien or charge upon
the vessel itself.
The whole of the said sum of 400/. was expended on
the vessel before the date of the indenture of the 12th
day of April, 1862, which was in the following terms: —
By an indenture dated the 1 2th day of April, 1862,
and made between the said Messrs. Brown & Briggs of
the one part, and the plaintiff of the other part (and
which indenture was duly executed by the parties):
After reciting the said agreement of the 11th of April,
1862, and that the said Messrs. Brown & Briggs had, in
order to enable them to proceed with the building of the
said vessel mentioned and referred to in the hereinbefore-
stated agreement, and for their other necessities, applied
to and requested the plaintiff to advance and lend them
the sum of 500/., which he had agreed to, upon having
the repayment thereof, as well as of all other sums winch
the plaintiff, his executors, administrators, or assigns
might thereafter advance and pay to, or for the use, or on
account of the said Messrs. Brown & Briggs, their exe-
cutors or administrators, or which might thereafter be
due and owing by the said Messrs. Brown & Briggs,
their executors or administrators, to the plaintiff, his exe-
cutors, administrators, or assigns, upon any account
whatsoever, secured in manner in the said now stating
indenture appearing: And it was by the now staling
indenture witnessed, that in pursuance of the said agree-
ment, and in consideration of the sum of 500/., on or
immediately before the execution of the now stating in-
denture paid by the plaintiff to the said Messrs. Brown
& Briggs, and for the purpose of securing the repayment,
with interest, of the same sum, and such sum or sums (if
any) not exceeding the amount by the said now stating
indenture limited, as might thereafter be advanced by the
plaintiff to or for the use of, or as might become payable
CASES IN CHANOERT.
189
to the plaintiff^ his executors^ admixuistrators, or assigns,
by the eaid Messrs. Brown & Briggs : They the said
Messrs. Brown & Briggs, by the now stating indenture,
assigned unto the plaintiff, his executors, administrators,
or assigns all that the hereinbefore stated memorandum
of agreement or contract for building a vessel of the 11th
day of April then instant, and all the estate, right, and
interest of them the said Messrs. Brown & Briggs re-
spectively, of and in the same, and all benefit and advan-
tage thereof, together with full power and authority for
the plaintiff, his executors, administrators, and assigns, to
demand, sue for, recover and receive, and give effectual
receipts and discharges for the monies therein, and in the
now stating indenture mentioned, and to become payable
by virtue thereof, to hold the said premises unto the
plaintiff, his executors, administrators, and assigns as
security to him and them for the repayment as well as of
the said sum of 5001 so advanced as aforesaid, as of all
such fiirther sum and sums of money (if any) not exceed-
ing the sum thereinafter limited, as the plaintiff, his exe-
cutors, administrators, or assigns, might thereafter advance
to, or as might become due and payable by, the said
Messrs. Brown & Briggs to the plaintiff, his executors,
administrators, or assigns, upon any account whatsoever,
together with interest on all such sum and sums respec-
tively firom the times of their respectively becoming due,
at and after the rate of 61. per centum per annum.
And it was by the said now stating indenture agreed and
declared, for the purpose of better securing the plaintiff
the repayment of all such sum and sums and interest as
aforesaid, that, subject to the lien mentioned and given in
and by the said recited agreement, the said vessel, and
the outfit thereof, and all materials, stores, goods, and
chattels then being, or which might from time to time, or
at any time during the continuance of that security
might be, upon the said building-yard, should be and be-
1S03.
Statmmnt
190
CASES IN CHANCEBY.
1863.
SWAZRSTOM
V.
Clat.
Statement,
come^ and should be deemed and taken to be for all in*
tents and purposes whatsoever, the absolute property of
the plaintiff, his executors, admimstrators, or assigns, to
be held by him or them in lien to the extent of all such
sums as might from time to time, or at any time during
the continuance of the now stating security should be
due from the said Messrs. Brown & Briggs, their execu-
tors or administrators, to the plaintiff, his executors, ad-
ministrators, or assigns, with interest as aforesaid. Pro-
vided always, and it was by the now stating indenture
agreed and declared by and between the said parties
thereto, that the aggregate amount of principal monies
to be secured by virtue thereof should not exceed 600t
Notwithstanding the said sum of 500/. expressed to be
received by the said indenture of the 12th of April,
1862, was therein stated to have been paid at or imme*
diately before the execution of the indenture, 400/.,
part thereof, was in fact paid by the plaintiff to Messrs.
Brown & Briggs ; and the sum of 100/., residue thereof,
was all that was really paid at the time of the execution
of the said indenture, which was laid out on the vesseL
Shortly after the date of the indenture of the 12th Aprils
1862, differences arose between Mr. Fisher and Messrs.
Brown & Briggs, as to the terms of the agreement of the
nth April, 1862 (the assignment), and on the 19th
of May it was cancelled and put an end to. At the time
of such cancellation there was due to the plaintiff on
the security of the indenture of the 12th April, 1862^
300/., and Messrs. Brown & Briggs, for the ex-
press purpose) of further and more effectually securing
the plaintiff against loss by reason of the agreement
being so cancelled as proposed, and, indeed, strongly
urged that the plaintiff should become the absolute
owner of the vessel ; and to such proposal the plaintiff,
believing that he would not thereby lose the benefit of
his security of the 12th April, 1862, consented.
CASES IN CHANCERY.
191
By a memorandum dated the 20th May, 1862, between
Messrs. Brown & Briggs of the one part, and the
plaintiff of the other part, and duly signed by the said
parties, it was agreed as follows : —
'' The said Messrs. Brown & Briggs agree to sell,
and the plaintiff agrees to purchase, the hull of a new
schooner or vessel now in course of building by Messrs.
Brown & Briggs at their yard at Pallion, to be built and
completed fully in accordance with the specification
thereto annexed, for the price of 1150/., payable as
herein mentioned.
'^That the sum of 500/., already advanced and paid
by the plaintiff to Messrs. Brown & Briggs at their
request, which was secured to be repaid to the plaintiff
by a charge or security of the vessel, shall be deemed
and taken as part payment of the purchase-money for
the said vesseL
''That in case Messrs. Brown & Briggs shall not
complete and launch the said vessel by the 2l6t June
then next, or if they shall at any time before the said
vessel should be finished cease working at the said vessel,
it shall be lawful for the plaintiff, his agents, servants,
and workmen, to enter into and upon the said building
yardy and to complete the said vessel, using the mate-
rials, stores, and tools of Messrs. Brown & Briggs
for that purpose ; and all costs thereby incurred shall
be paid by and be recoverable against Messrs. Brown &
Briggs."
Messrs. Brown & Briggs made no further progress
with the vessel, and on the 2nd June, 1862, were adjudi-
cated bankrupts. On the 19th June following the de-
fendants were duly elected creditor's assignees of the
bankrupts, and such election was duly confirmed by the
Court of Bankruptcy for the district of Newcastle-on-
Tyne. Shortly a£ter the bankruptcy the plaintiff applied
to the defendants and requested them to complete the
VOL IV. O
16G3.
SwAiir STOIC
t?.
Clay.
Statement.
192
CASES IN CHANGERT.
V,
Clay,
Statemenf,
1863. vessel according to the terms of the agreement of the
SwAiNBToif 20th of May, 1862, or else to authorize the plaintiff
himself to enter the shipbuilding-yard of Messrs.
Brown & Briggs and complete the same; but the
defendants neither completed the vessel nor would they
allow the plaintiff to do so.
The bill alleged that the defendants contended that the
cancellation of the agreement of the 11th April, 1862,
determined or vitiated the plaintiff's security of the 12th
April, 1862, and the lien in his favour thereby created ;
and that they also insisted that he had no rights as
lurainst them under the said agreement of the 20th May,
1862, and in fact that he had no interest whatever in the
said vessel further than as a general creditor of the
bankrupts.
The bill charged that the agreement of the 12th April,
1862, created a valid lien or charge upon the said vessel in
plaintiff^s favour for the sum of SOOL and interest, and any
further sum not exceeding together the sum of 6002., and
that the subsequent dealings between him and the
bankrupts in no way prejudiced or otherwise affected
such lien or charge, insomuch as the possession of the
said vessel by the bankrupts, and subsequently by their
asdgnees, the *' defendants," must, as against the said bank-
rupt's estate, be treated as the possession of the plaintiff
himself; but in case the plaintiff shall be held not
entitled to any such lien or charge as aforesaid, then he
is advised and submits that he is entitled to have the
said agreement of the 20th of May, 1862, specifically
performed, he being in that event willing to complete the
said vessel himself in case the defendants persist in
refusing to do so.
The plaintiff prayed as follows : —
1. That an account may be taken of what is properly
due to the plaintiff by virtue of the said indenture of the
12th of April, 1862, and the lien or charge thereby
CASES IN CHANCERY.
193
created^ or otherwise in respect of the advances so made
by the plaintiff as aforesaid.
2. That the plaintiff may be declared entitled to a
lien or charge on the said vessel^ for what on taking such
account shall be so found due to the plaintiff.
3. That if the plaintiff shall be held not entitled to
such lien or charge as aforesaid^ then that the defendants
may be decreed specifically to perform the said agreement
of the 20th of May, 1862, either by themselves com-
pleting or allowing the plaintiff to complete the said
vessel according to the terms of the said agreement, and
by doing all necessary acts for conferring upon the
plaintiff an absolute interest in the said vessel, and com-
pleting his title thereto, the plaintiff being ready and
hereby offering to complete the said agreement on his
part.
The bill was filed on the 13th October, and on the
17th November the plaintiff moved for an injunction to
restrain the defendants from selling the vessel ; but on
the defendants undertaking to file their answer within
fourteen days, and in the meanwhile undertaking not to
mortgage or otherwise deal with the vessel so as to pre-
judice the plaintiff's rights, the motion was ordered to
stand till the hearing.
On the 1st December the assignees filed their answer,
alleging that the deed of the 12th April, 1862, was never
registered as a bill of sale. They alleged that the agree-
ment of the 20th May was signed at a time when the
bankrupts were hopelessly insolvent, and was a fraudu-
lent preference, and therefore void.
The answer further alleged, " that when the contract
for building the said vessel was arranged with the plain-
tiff, he agreed that, if the bankrupts required funds to
enable them to build the vessel, he would make an ad-
vance out of his own moneys for that purpose. The
answer then proceeded thus, " We believe it to be
o2
ises.
SWAIHSTON
V, .
Clay.
Statement
194
1863.
SWAXirSTON
• V.
Clat.
Statement.
CASES IN CHANCERY.
the fact that the plaintiff did, on or about the 28th
March, 1862, advance and lend to the bankrupts the
said sum of 400/., and that, on or about the 4th day
of April, 1862, he advanced and lent to them the further
sum of 100/." But whether the said sum of 400/. was so
advanced and lent upon the understanding that the re-
payment of the same was to be secured as well by an
assignment of the said agreement, or whether or not as
soon as the same should be duly signed and perfected, or
at any other time, as by a lien or charge upon the said
vessel itself, or upon any other understanding, such sum
was advanced, or upon what other security, we are unable
to state, as to our belief or otherwise."
The defendants further alleged that the cancellation of
the 11th April put an end to the plaintiff's lien, if it had
previously existed.
It appeared from the evidence that on the 20th May,
1862, Messrs. Brown & Briggs granted a certificate of
the tonnage, title, and build, &c., of the vessel, under the
40th section of the Merchant Shipping Act, 17 & 18 Vic.
c. 104.
Argument. Mr. Bacon and Mr. Waller for the pWntiff.
It could not be disputed that, by the deed of the 12th
April, 1862, the plaintiff acquired a valid lien on the
vessel for the sum of 500/., with interest, and for any
further sum, not exceeding the sum of 600/., which he
might advance. Nothing that took place subsequently
could affect his right ; but even if it had, the plaintiff's
title under the deed of the 20th May was indefeasible.
By that deed he became the purchaser, and, as purchaser,
paid 500/. on account. That the vessel remaining in the
yard of the bankrupt did not render her, in law, in the
order and disposition of the bankrupts was clear: Holder-
ness V. Bankin{a), Here there was a contract part
(fl) 26 Beav. 80.
CASES IN CHANCERY.
performed, which the plaintiff waa entitled to have speci-
ficallj performed by the assignees.
In Woods V, Eussel(a)y where a shipbuilder contracted
to build a vessel for the plaintiff, who paid several instal-
ments of the price, it was held that the signature, by the
builder, of the building certificate was sufficient to vest
the general property in the purchaser from the date of
the registration: Ex parte Watts, [^Re Attwater, Bart,,
December 12th, 1862, before the Lord Chancellor in
Bankruptcy, was also cited.]
195
isas.
SWAIMtTON
V.
Clay.
Argument,
Mr. Matins and Mr. T. Stevens for the assignees.
The deeds of the 11th and 12th April, 1862, ceased to
have any operation. [The Vicb-Chancellor.— Then
does the deed of the 20th May confer any title on the
the plaintiff?] It was not a purchase, as the plaintiff
allied ; it was a mere 'security for money lent The
vessel could not be registered, and therefore the money
was lent on the security; of a chattel, and ought to have
been registered under the Bills of Sale Act, 17 & 18 Vic.
c 36; and not having been so registered the security
became void.
The fallacy in the reasoning on behalf of the plaintiff
was that the deed of the 20th May, 1862, was not a
bondjide purchase.
But, secondly, the deed was void as a fraudulent pre-
ference.
Mr. Bacon, in reply.— The 17 & 18 Vic. c. 36, did not
apply to ships, which were expressly excepted by the 7th
section.
The Vice-Chancellob : —
The question is whether the plaintiff has a lien or
charge upon this incomplete vessel in respect of moneys
Judgment.
(^) (iB.k Aid. 94^.
196
166S.
SWAIN&TOK
V.
Clay.
Judgment,
CASES IN CHANCERY.
adyanced by him to the bankrupts. If these adyances
were made by him upon an understanding that he was to
have a charge upon the vessel in respect of them, there
seems no ground upon which the defendants can resist
the claim. The answer of the defendants states, as to
these advances, in the 4th paragraph, that, ^'when the
terms of the said contract for building the said vessel
were arranged with the plaintiff, he agreed that, if
the bankrupts required ftmds to enable them to build the
vessel, he would make them an advance out of his own
moneys for that purpose ; and we believe it to be the feet
that the plaintiff did, on or about the 28th March, 1862,
advance and lend to the said bankrupts the said sum of
4002L, and that, on or about the 4th day of April, 1862,
he advanced and lent to them the further sum of \QOV^
Then, as to the understanding upon which the 4002. was
advanced, they say : '' But whether the said sum of 4002.
was so advanced and lent upon the understanding that
the repayment of the same, with interest, was to be se-
cured as well by an assignment of the said agreement, or
whether or not as soon as the same should be duly signed
and perfected, or at any other time, as by a lien or charge
upon the said vessel itself, or upon what other under-
standing such sum was advanced, or upon what other
security, we are unable to state, as to belief or other-
wise." That is not a denial of the case of the plaintiff,
who, in his affidavit, in most distinct terms, swears that
he agreed to, and did in fact, lend them the same, t>., the
moneys in question, upon condition that the same should
be secured as well by an assignment of the said purchase
agreement, when completed, as by a lien or charge on
the said vessel itself." As to the agreements stated in
the pleadings, the first of them, that of the 11th April,
is in favour of the plaintiff; and the subsequent agree-
ments, followed ultimately by the memorandum of the 20th
May, whereby Fisher^ the purchaser for whom the ship
CASES IN CHANCERY.
was originally to be built, was discharged, and whereby
it was agreed that the plaintiff should become the pur«
chaser, are of no value except for the evidence they afford
of a contract for a lien, which, in my opinion, was a
valid lien, and must prevail. It is well established that,
where a ship is in the course of construction in the yard
of the shipbuilder, and in other cases where goods are in
the course of being manufactured, a possession of this
kind on the part of the builder or maker, who becomes
bankrupt, does not constitute such a possession as that
the goods are in the reputed ownership of the constructor,
and in his order and disposition within the meaning of
the Bankrupt Act Mr. Stevens's argument, that it is
impossible to treat the agreement of the 12th April as
any longer a binding agreement, seems to me entirely to
faiL In my opinion, the plaintiff is entitled to a decla-
ration that he has the charge or lien which the bill asserts,
and a decree for the payment of what shall be found due
to him; his costs to be added to his security.
197
1868.
SWAINSTOV
V.
Clat.
Judgment*
A sale was ordered ; the plaintiff being at liberty to
prove under the bankruptcy for any balance that might
be unsatisfied.
198
CASES IN CHANCERY.
1868.
January 31.
AteBtator
gave his resi-
duary real
and personal
estate to
trustees, upon
trust as to
one-third for
his son and
daughter as
tenants in
common; his
son's share to
be vested at
twenty-four,
and his
daughter's on
her marriage
with consent
of her guardi-
ans; but in
case his son
should die
under twenty-
four without
leaving issue,
or his daughter
withouthaving
been married
with such con-
sent as afore-
said, then in
trust for the
survivor.
The son
having at-
tained twenty-
four, and the
daughter
twenty-one
without being
married —
Held that
they were
entitled in
equal moieties.
Booth V.
J900/A (a), ob-
served on.
WEST V. WEST.
IHIS bill was filed on the 3rd June, 1862, by Julia
Mary West, the daughter of William James West,
against his widow, William Robert West, his son, and
the trustees of his will, praying that the rights and
interests of the plaintiff and all parties might be ascer-
tained and declared.
William James West, by his will, dated the 7th April,
1848, devised and bequeathed all his real and personal
estates whatsoever and wheresoever, to trustees, their
heirs, executors, administrators, and assigns, upon trust
to pay his just debts, &c., and to stand possessed of the
residue of his said real and personal estates, upon trust
as to one-third thereof, and of the rents, interest, and
annual income thereof, for his widow for life, and, after
her decease or marriage, then upon the same trusts for
the benefit of his son and daughter as were next there-
inafter declared. And as to another third of the said
real and personal estates, '^ upon trust for his said son
William Robert West, and his said daughter Julia Mary
West, to be divided between them in equal proportions
as tenants in common, and not as joint tenants, the share
of his said son to be vested in him at the age of twenty-
four years; and the share of his said daughter to be
vested in her on her marriage, with the consent neverthe-
less of her guardian or guardians for the time being."
In case his son William Robert should die under
twenty-four, " and without leaving lawful issue, or his
said daughter Julia Mary should die without having been
(a) 4 Yes. 309.
CASES IN CHANCERY.
199
married with such consent as aforesidd/' then the testator
dedared that the share of him or her so dying, together
with all accumulations^ should be held " in trust for the
survivors of them his said son and daughter, his or her
heirs, executors, administrators, and assigns, and to be a
vested interest in him or her respectively at the same age
or time as his or her original share." As to the remain-
ing one-third part of the said real and personal estates,
testator gave the annual income thereof to his youngest
son, James Edwin West, for life, and after his decease,
" upon the same trusts for the benefit of his said son
William Robert West and his said daughter Julia Mary
West, as were last thereinbefore declared concerning the
other one-third part of the said trust estates, so limited in
trust for them as aforesaid." The testator declared that
"if at his decease his said son William Robert West
should not have attained the age of twenty-four years, or
his said daughter should not have been married with such
consent as aforesaid," it should be lawful for the trustees
to apply all or any part of the income " of his or her pre-
sumptive or contingent share in his said trust estates "for
his or her maintenance. He further appointed his said
trustees his executors, and also, together with his wife,
" to be guardians of such of his children as for the time
being should be under the age of twenty-one years."
The testator died on the 24th May, 1848.
James Edwin West died under twenty-one on the 26th
September, 1860. William Robert West had attained
twenty-four, and the plaintiff Julia Mary West had at-
tained twenty-one since the death of the testator.
The bill alleged that the defendants refused to pay and
transfer to the plaintiff her share in the testator's resi-
duary estate, alleging as the ground for that refusal that
she had only a contingent interest, dependant on her
marrying with the consent of her guardians.
1863.
Siaiwifnt
200
CASES IN CHANCERY.
1863.
West
V.
Argument,
Mr. Malins and Mr. Harding for the plaintiff.
In the construction of a will the Court would gather
the testator's meaning from the whole of the instrument,
and not from an isolated expression. Applying that test,
it was plain that what the testator meant was, not to
make his daughter's share dependent on her marrying
but simply that if she married under age with the consent
of her guardians, her share should become then payable,
instead of wiuting until the period when, according to
the ordinary rule of law, it would be payable.
The opposite construction would lead to this absurdity,
that in the event of the daughter never marrying — ^that
is, an event which would render it most important that
she should have some provision made for her — ^the testator
would be made to say that she was to have none.
Where a testator in other parts of the will treats
the share of a legatee as his share before the sped*
fied period, or has given over the fund in a particular
event, thereby implying that in every other event it is to
belong to the legatee, the word " vesting " must be
deemed to mean payable: Berkley v. Sioinhurne{a),
Taylor v. Frobisher {b). This Vas exactly the present
case, and it was submitted, therefore, that the plaintiff
was absolutely entitled to her share.
{Young v. Robertson {c), and Jarman on WiOt, 806,
were also cited.]
Mr. J. Aston, for the son, submitted that this waa a
contingent legacy dependent on the legatee's marrying
with the consent of the trustees.
In Atkins v. Hiccocks{d\ where a testator devised to
his daughter 200/., to be paid to her at the time of
marriage, or within three months after, provided she
(fl) 16 Sim. 275.
(h) 5 De G. & S. 191.
(c) 8 Jar. N. S. 825.
(d) 1 Atkins, 500.
CASES IN CHANCERT.
201
many with the approbation of his two sons^ the daughter
haying attained twenty ^one^ but died without haying been
married, it was held that the legacy was not yested.
That was nearly the present case.
Mr. Bacon and Mr. Marten appeared for the trustees.
1868.
Wbbt
V.
Wmt.
Argument.
The Vice-Chancblloe : —
There is great difficulty in cases of this kind. Lord
Hardwicke, in the case of Atkins y. Hiccocksy held that,
when the words referring to marriage amount to a con-
dition precedent, until the condition is performed the
I^atee has not a yested interest. That is an intelligible
ground of decision, and the authority of that case has
neyer been questioned. It is certain in the present case
that there is no condition precedent, and there are other
authorities which show that, upon questions of this kind,
the Court has done some yiolence to the language of the
testator in order to preyent the consequences which
would follow from a presimiption inconsistent with the
intention of the testator in fayour of the legatee. In the
case of Booth y. Booth (a) there was a gift of residue, as
in the present case, upon trust to pay the diyidends
equally between the testator's great-nieces, Phoebe Booth
and Ann Booth, until their respectiye marriages, and
firom and immediately after their respectiye marriages, to
assign and transfer to them their respectiye sharea and
moieties thereof. That was a strong case, for there was
an express life interest, with a direction to pay the capital
upon the marrii^e of the nieces. One of the nieces died
unmarried, and the question was whether her share was
yested. Lord Alyanley decided that it was a yested in-
terest, although the event of marriage had neyer occurred.
Looking at the whole will, and doing yiolence to the par-
Judgmmtm
(a) 4 Yes. 309.
202
CASES IN CHANCERY.
1863.
Judgment,
ticular words which said that the capital was to be paid upon
marriage^ he held that the capital was vested and trans-
missible^ though the lady was never married at alL In
that case the Court had to consider the various authorities,
and amongst the rest, the case of Atkins v. Hiceocks ; and
Lord Alvanley, in deciding in favour of the niece, who
had never been married, relied very strongly upon the
circumstance that the subject matter of the gift was not
a legacy of specified amount, but a share of residue.
That seems a small distinction, but it is beyond a doubt
that this Court, in questions of this kind, has made a dis-
tinction in favour of residuary legatees.
Sir W. Grant, in Leake v. Robinson (a), had occa-
sion to consider the decision of Lord Alvanley in
Booth V. Boothy and, after criticising the judgment
of Lord Alvanley, he ends by expressing his strong
approbation of the principle upon which that learned
judge proceeded. At p. 386 Sir W. Grant says, " I
am aware that, though in regard to particular legacies,
this doctrine," that is, in favour of vesting, " has not
been controverted, yet the case of Booth v. Booth may
be considered as throwing some doubt upon it, when
it is a residue that is the subject of the bequest. There
is certainly a strong disposition in the Court to con-
strue a residuary clause so as to prevent an intestacy
with regard to any part of the testator's property- With
all that disposition, it is evident that Lord Alvanley felt
that he had a difficult case to deal with. Some violence
was done to the words in favour of what he conceived to
be, and what in all probability was, the intention. That
intention, however, was collected from circumstances that
do not occur in the present case. Both the legatees were
adults at the time the will was made. Lord Alvanley
admits that, if it had been otherwise, it might have made
some ingredient in the argument." He goes on with
(a) 2 Mer. 363, 386.
CAS£S IN CHANCERT.
203
further observations on the case of Booth v. Booths and
adopts the principle on which that decision was founded.
In the present case there is a clear manifestation of
bounty towards this daughter^ and the whole question
seems to be whether these words which refer to her
marriage were or were not intended to give her a bene-
ficial interest, in regard to the time of vesting, greater
than the testator intended to give to her brother. This
is a case of a gift of residue, as in the case of Booth v.
Booth. But there is no direction like that in Booth v.
Booths where the first gift was to the daughter, of the
dividends, with a subsequent direction, in the particular
event, to pay the capital; but it is a gift of residue with an
express trust for the son William Kobert, and the
daughter Julia Mary West, to be divided between them
in equal proportions as tenants in common, and not as
joint tenants. These words are free from all doubt
The testator intended that the son and daughter, at some
time or other, should take the whole equally between
them as tenants in common. Having said that, he goes
on to say that the share of the son is to be vested at
twenty-four. He might have said the same thing as to
the daughter, but she was only eighteen, and he contem-
plated that she might marry before twenty-one, and he
intended if she married before tweuty-one that it should
be with the consent of her guardians, and that her share
should be then payable. That was a rational intention, and
is expressed by these words: — "the share of my daughter
to be vested in her upon marriage with the consent of
her guardians or guardian for the time being.** It seems
very clear that her marriage with the consent of guardians
must mean her marriage under twenty-one ; for if her
marriage did not take place under twenty-one she could
3iot have any guardian. The testator meant that if she
married under twenty-one without consent the legacy
should not then vest in her. But it is a rational intention
ises.
Judgment,
204
CASES IN CHANCERY.
1863.
Judgnieuf.
in this respect that he should give her a greater benefit
than he did to his son^ whose share was not to vest until
twenty-four. He goes on to say, "in case Robert
William should die under twenty-four, and without
leaving lawful issue, or his said daughter Julia Mary
should die without having been married with such consent
as aforesaid." These words " die without having been
married with such consent as aforesaid," must mean nothing
else than " die under twenty-one unmarried." Thus, if she
died unmarried under twenty-one, her share was to go to
her brother. This gift over in the event of dying before
vesting would be almost nonsense if the construclion
contended for by the brother and trustees were to prevail.
Suppose the son died under twenty-four, what was to
become of the two shares? There is a clear gift of them
to the daughter as the survivor, and in that event, if the
will is to be construed, with reference to the marriage,
that the daughter was to take a vested interest if she
married with the consent of guardians — and that could not
occur after twenty-one — the whole gift would faiL Sir
W. Grant said that a gift of residue was a different
thing from a gift of a legacy, and that the Court would,
if possible, construe the words so as to prevent an intestacy.
But here would be an intestacy of the whole if the daughter
survived and married at thirty, the son dying under twenty-
four : neither could take a share of the residue. It is a
conclusion entirely different from the intention to be col-
lected from the whole scope of this will. It is, I
think, a stronger case than that of Booth v. Booth, where
it appeared that the Court wished to accelerate vesting
and to prevent intestacy.
Under the circumstances, it seems to me that the
plaintiff is entitied to a declaration that her share is
vested, and I think the proper order will be to declare
that the son and daughter are entitled absolutely.
The declaration was that according to the true con
CASES IN CHANCERY-
struction of the will, and in the events which had
happened, the plaintiff and her brother were absolutely
entitled in equal moieties to the entirety of the real and
personal estates, subject to the interest of the widow in
one-third during her life.
205
166S.
West
V.
WSftT.
Jugdmtnt,
HOLDEN V. KAMSBOTTOM.
James RAMSBOTTOM by his wiU, dated the 5th
February, 1855, made the following disposition: —
^'I give the said Eleanor Holden also absolutely all the
furniture, except plate and pictures, which may be in the
ssdd house at my decease." At the time of his death the
testator had in the house a plated service; he had at that
time at his bankers a service of solid silver, and other
silver articles.
Mr. Bacon and Mr. Becky for the executors, contended
that by the word "plate" must be understood both the
solid silver and plated articles in the house, and that they
were within the exception.
Mr. Malins and Mr. Forster^ for the legatee, contended
that plate only referred to solid silver. They cited Roper
on Legacies (a), Kelly v. Powlett (b), Cremome v. An^
trobus {c).
The Vice-chancellor: —
The only question is as to the construction of the
(a) Vol. 1, 291, c. 4, 8. 1. (h) Ambler, 605. (e) 5 Russ. 312.
Jan 23nl.
Beqnest by
testator of all
the farnitare
(except plate
and pictures)
whidi might
be in a house
mentioned at
his decease— ;
Held to be
confined to
articles of
solid silver »
and not to
include a
plated service
in the said
honae.
Argumtni*
Judgnientt
206 CASES IN CHANCERY.
1863. word "plate " as used in the exception from the gift of
HoLDEK furniture. It is to be observed that the gift is of all
Rambbottox ^^^ furniture in the siud house^ and that it is from this
, T~ ^ particular furniture that the testator excepts the plate
and pictures. It is admitted that if the exception had
not been made every article of plate would have passed
under the description of furniture. The single question
seems to be, whether there Is enough to authorise the
Court to hold that the testator used the word in any
other than its proper sense; and my opinion is, that there
is nothing in the context of the will or in the evidence
as to the situation of the testator with regard to the time
of gift, legitimately to show that the word was not used in
its proper sense. Therefore the exception applies to the
word " plate," ^properly ^so called, and plate properly
so called does not include plated articles. The declara-
tion will be that that the plaintiff is entitled to all the
plated articles mentioned in the schedule to the defend-
ant's answer, and there will be an order that they be
delivered to her within one month from the service of
the order.
Decree accordingly.
OASES IN OnANCERY. 207
SWEET V. MEREDITH (a).
Me.
KARSLAKE moved that the contract in this ^^SS'^
case might be rescinded, and all proceedings stayed in the performance
suit; reserving liberty to the plaintiff to apply to assess the to purchase
damages. The biU was filed by the plaintiff the vendor, ^723i.
against the defendant, the purchaser, to enforce a contract ™^^ ^^^
for the sale and purchase of the advowson of Kentisbury, motion by the
North Devon, for the sum of £5500. On the 18th a,^*^^
March, 1863, a decree for specific performance of the be^^SdSd***
contract was made, by which the title was ordered to be and all pro-
accepted, and directing that on the plaintiff executing a stayed, except
conveyance to the defendant the latter should pay the ^^i^J^n ^
purchase-money on the 16th day of August, 1862, or this Court as
within seven days after the service of the order. made by the
The money not being piud at the day fixed, the plaintiff usess the
obtained a writ of attachment against the defendant, who ^^^g^i,
had gone out of the jurisdiction. the breach of
The Vice-Chancellor made the order in the terms of the defendant,
that made in Foligno v. Martin (J), the plaintiff to be at Marihi^iQ
liberty to apply in respect of any damages sustained from ^^- ^^»
&e breach of contract.
The order was finally passed in the following terms: —
" Upon motion this day made unto this Court by
counsel for the plaintiffs, George Sweet and William
Fort Sweet, and upon reading an affidavit of John
Stephens of notice of this application to the defendant,
Robert Fitzgerald Meredith, a decree dated the 18th
ilarch, 1862, an order dated the 16th April, 1862, an
order dated the 9th day of August, 1862, and an
(a) For a report of the case see anth, 3 Giff. 610. (h) 19 Beay. 680.
vol.. nr p
208 CASES IN GHANCERT.
18^. affidavit of the plaintiff William Fort Sweet, filed the
6th day of January^ 1863^ this Court doth order that the
contract mentioned in the pleadings of the firstrmentioned
cause, and set forth in the third, sixth, and seventh para-
graphs to the plaintiffs' bill therein, be rescinded, and that
all further proceedings in this cause be stayed, except as
to any application which may be to this Court to award
and assess the damages which the plaintiffs George Sweet,
clerk, and William Fort Sweet, clerk, have sustained by
reason or in consequence of the .breach of the said con-
tract: and it is ordered that the defendant Bobert
Fitzgerald Meredith do pay unto the pluntiffs George
Sweet and William Fort Sweet their costs of this
application, to be taxed by the taking master."
Dee. 10. SHEPABD V. BROWN.
Demurrer to a 1 HIS was a general demurrer for want of equity,
SscovtS^and ^he bill aUeged that the defendants, John Brown,
an account of "VTilliam Bragg, and John Devonshire ElUs, for some time
good! Bold by . - . , • nr •■«/»/v • i
the defendant, previously to, in, and ever since May, 1860, earned on at
whfdTtill"''''^ the Adas Sheet Steel Works, Sheffield, as partners
piidntiff was ^^er the gtyle of John Brown & Co., the trade of
entitled to a •^ , ^
commission manufacturers of steel and iron goods. Previously to
costs. May, 1860, and ever since, the said firm had an office at
of^^o"nntl'^" No. 33, Broad Street Buildings, in the City of London, and
Courts of j^ Q^ Bayley,the brother-in-law of Mr. Bragg, was in
Courts of
L%w posfess concurrent jurisdiction, and the decision as to the proper tribunal most be
governed by considerations of conyenience.
Phmipe ▼. Phmpe^ 0 Hare, 471, observed on.
CASES IN CHANCEB1&.
209
May, 1860^ and had for some time preyiously been^ and
has ever since continued to be, the general agent and
representatiye of the London firm. The said firm had
before and in May, I860, and had ever since, an office,
23, Boulevard des Italiens, at Paris; and one Chapman
was in May, 1860, and for some time previously had been,
the firm's general agent and representative at Paris.
The plaintifi^ had for many years had an extensive con-
nection with Continental railway companies, and their
directors, managers, and other officials, and in particular
in May, 1860, was, and had for some time been, ac-
qu2unted with M. Bricogne, the engineer of the Chemin
de Fer du Nord in France, and M. Loustrau, one of the
chief officials of the said company. Early in 1860 the
plaintiff became acquainted with J. C. Bayley, and was
asked by him whether he (plaintiff) could introduce
J. Brown & Co's. iron goods to the French railway
companies. The plaintiff was willing to undertake such
introduction, and the terms, having been discussed
between the plaintiff and the said J. C. Bayley, were
ultimately reduced into writing and embodied in the
following letter : —
1S63.
Shbfard
r.
Bhovk.
Stat§mint»
"E. C. Shepard, Esq.
''Atlas Steel Works, Sheffield.
" May 8, 1860.
*' Dear Sir, — ^We shall be most happy to hand you a
commission of 7} per cent, on all orders you may obtaim
for us in steel firom the Chemin de Fer du Nord, and the
Chemin de Fer d'Orleans, in France, whether directly
or indirectly traceable to you, it being understood that so
long as the said railway companies continue to purchase
steel from us we will allow you this commission.
*' We are yours very faithfully,
" P.p. John Brown & Co.
** (Signed) J, C, Batlet."
P 2
210
1863.
Shbpabd
V,
Browk.
Statement.
CASES IN CHANCERY.
The said letter was in the hand-writing of the said
J. C. Bayley^ and it was on the day of the date thereof
signed by said J. C. Bayley on behalf of the firm of
John Brown & Co., delivered to the plaintiff by the sud
J. C. Bayley at the London office of the said firm.
The said firm of John Brown & Co. had not at the
date of the letter of the 8th May, 1860, supplied any
goods to the companies mentioned in the said letter.
After he had signed the letter, J. C. Bayley gave the
plaintiff several books of patterns, &c.5 in order that the
same might be shown to the engineers of the riulways.
On the 7th July, 1860, J. C. Bayley wrote and sent to
the plfiintiff the following letter : —
« 33, Broad Street Buildings.
" New Broad Street, London.
"July 7,1863.
" Dear Sir, — Have you heard from Bricogne yet ? I
have heard a Monsieur Petiet, of Great Northern France,
has been giving orders for locomotives, &c., for tbat
railway in Leeds and Manchester. Don't let this matter
slip through your fingers if you can help it When do
leave for France ?
" Cordially yours.
"J. C. Bayley.
'* E. C. Shepard, Esq."
The plaintiff shortly after the receipt of the first-men-
tioned letter made a journey to Paris at his own expense,
and for the sole purpose of introducing the goods of the
said firm of John Brown & Co. to the railway companies
mentioned in the said letter of the 8th of May, 1860, and
took with him the books of patterns and other particulars
which had been supplied to him as aforesaid by the said
John Clowes Bayley. The plaintiff remained at Paris
during ten dajjrs; and during that time bad frequent in-
CASES IN CHANCEHY.
211
tenriews with Monsieur Bricogne and Monsieur Loustrau,
and with the other officials of the said railway companies,
and laid before them and left with them the said patterns
and other particulars, with which none of them were pre-
vioualy acquainted, and urged upon them very strongly
the adoption by the said companies of the goods of the
said firm of John Brown & Co.
The plaintiff made other journeys to Paris subse-
quently, and employed part of his time on such occasions
in endeavouring to obtain orders for the said firm of
John Brown & Co. from the said railway companies. He
incurred expenses on the occasion of such journeys in
endeavouring to further the interests of the said firm.
The plaintiff having incurred considerable expense and
loss of time in and by his said journeys to and stay at
Paris, and having exerted himself to the utmost of his
power and influence in introducing the goods of the Biud
finn of John Brown & Co. to tiie said railway companies,
became aware, in or about the month of November, 1860,
that an order for a large number of steel buffers had, in
consequence oi the said introductions, been sent to the
said firm of John Brown & Co. from the Railway Com-
pany of the Chemin de Fer du Nord ; and he has since
ascertained that other orders to a very large amount have,
in consequence of the said introduction, been given by
the said railway company of the Chemin de Fer du Nord
and the Chemin de Fer d'Orleans, or one of them, to the
said firm of John Brown & Co., and that the said orders
have been accepted and executed by the said firm.
The plaintiff himself has frequentiy applied to the
defendants, and to ^the said John Clowes Bayley, for an
account of the orders obtained as aforesaid, and payment
of his commission thereon in accordance with the terms
of the said letter of the 8th May, 1860, but he has not
been able to obtain any satisfactory answer, information,
or account.
ises.
Shbfard
V,
Bbown.
StatmnenL
212
CASES a chancjsbt.
1863.
Shbfard
V.
Brown.
Statement,
The bill then set out certain letters between the plain-
tiff's solicitor and the firm of John Brown & Co. on the
subject of the plaintiff's demand. On the 14th June,
1862, the said firm wrote and sent to the phuntiff's
solicitor the following letter : —
"John Brown & Co.
" Atlas Steel Spring and Iron Works, Sheffield.
"June 14th, 1862.
"Mr. S. Cook Frankish,
" 23, Parliament Street,
« London, S. W.
" Sir, — In reply to your note of this day the letter you
send us a copy of was not authorised by us in any way,
and was not given by our consent or knowledge. Mr.
Bay ley had not the power to commit us in the matter, and
your client Mr. Shepard was informed that we should
not in any way recognise the same. We must express
our great surprise that your client should have attempted
to make an agreement with one of our representatives
instead of ourselves, and then apply here afterwards ask-
ing us to confirm the same. He was then informed we
should not in any way recognise such an agreement,
which he said he had got, but did not produce, and which
we had no knowledge of at that time. We also now
repeat we are not, and shall not, be bound in any way to
that agreement so called and obtained in such a way that
cannot be binding legally, and certainly not equitably ;
and further we have not, as it happens, supplied any steel
in any way to the parties named. We are glad such is
the case, because it defeats an unfair and improper
attempt to take money from us not due : at least, the
correspondence would, we think, justify such a conclusion.
If you are not now satisfied, we refer you further to our
solicitor, Mr. George Marples, Sheffield.
" Yours, &c.,
"John Brown & Co-"
GASES IN CHANCERTi
213
The plaintiff alleges and charges that the said John
Clowes Baylej had authority firom the said firm of John
Brown & Co. to make with the plaintiff the agreement
contained in the said letter of the 8th of May, 1660, and
that the said agreement was so made by the said John
Clowes Bayley as aforesaid with the plaintiff in the
ordinary and usual course of business ; and that the said
John Clowes Bayley has informed the plfiintiff^ and that
it is the fact, that he, the said John Clowes Bayley, has
frequently made agreements of a similar character with
other persons, which have been recognised and acted upon
by the said firm ; and that large smns of money have
frequently been paid by the said firm for commission to
persons with whom the said John Clowes Bayley has
made agreements of a similar character to that contained
in the said letter of the 8th of May, 1860.
The plaintiff further alleges and charges that the said
letter of the 8th of May, 1860, was written, signed, and
delivered to the plaintiff as aforesaid by the said John
Clowes Bayley, with the actual consent and knowledge of
the defendants, or some or one of them, or if not then
that the contents of the said letter, and the fact of the
same having been so written, signed, and delivered to the
plamtiff as aforesaid by the said John Clowes Bayley,
were or was, on or shortly after the 8th of May, 1860,
communicated by tlie said John Clowes Bayley to the
defendants, or some or one of them, and that the herein*
before stated letter of the 7th of July, 1860, was written
and sent by the said John Clowes Bayley to the plaintiff
with the consent and knowledge of the defendants, or
some or one of them, and that the defendants, or some or
one of them, were or was, on or shortly after the 8th of
May, 1860, well aware that the said John Clowes Bayley
had given the plaintiff books of patterns and other par-
ticulars of the goods manufactured by the said firm of
John Brown & Co., in order that the plaintiff might take
1863.
Shepard
V,
Brown.
Statement,
214
CASES IN CaAXCERY.
1863.
Shbvard
V,
Brown.
Statement
the same to Paris, and lay them before the engineers and
other officials of the French railway companies mentioned
in the said letter of the 8th of May, 1860; and that the
said John Clowes Bayley was in or about the month of
July, 1860, urging the plaintiff to proceed to France for
the purpose of introducing and obtaining orders for the
purchase of the goods of the said firm of John Brown &
Co. to the said French railway companies, and that the
plaintiff was contemplating a journey to Paris for that
purpose; and the plaintiff charges that the defendants
did not, nor did any or either of them, at any time pre-
viously to his departure for Paris, on or about the 14th
day of July, 1860, for the purpose aforesaid, express any
dissent from or make any attempt to repudiate the agree-
ment contained in the said letter of the 8th of May, 1860.
The plaintiff further alleges and charges that it is un-
true that the said firm of John Brown & Co. have not
supplied any steel in any way to the parties named in the
said letter of the 8th of May, I860, for the s^d John
Clowes Bayley and Chapman have respec-
tively admitted to the plaintiff, and it is the fact, that
steel goods to the amount of £8000 and upwards have
been supplied by the said firm to the said Company of
the Chemin de Fer du Nord since and in consequence of
the introduction of the goods of the said firm by the
plaintiff to the said company in manner aforesaid ; and
the plaintiff has lately seen a letter from the said Mon-
sieur Loustrau to the said Chapman, con-
taining an order for twenty-five sets of buffers, at £10
per set, to be supplied by the said firm to the sidd Com-
pany of the Chemin de Fer du Nord.
The plaintiff charges that under the circumstances
aforesaid he is entitled to a commission of 7^ per cent, on
all orders for steel goods that have been or may hereafter
be given to the said firm of John Brown & Co. by tlie
companies mentioned in the said letter of the 8th of May,
Cases in CHA^'CERY.
215
I860, or either of them ; and that the defendants ought
to set forth a true statement and account of all orders
which have been received by the said firm up to the
present time j&om the said companies, or either of them,
and ought to account to the plaintiff for the commission
thereon after the rate aforesaid.
The bill contidned the usual charge as to documents,
and prayed, inter a/tia—
1. That the defendants might make a full and true
discoyery and disclosure of and concerning the same.
2. That it might be declared that the said letter of the
8th May, 1860, was binding upon the defendants.
3. That an account might be taken under the decree
of the Court of what is now due to the plaintiff in
accordance with the terms of the letter of the 8th May,
1860.
4. That the amount found due might be paid, &c.
1863.
Shbpakd
V.
Browk.
Siatement*
Mr. Malins and Mr. C. Barber for the demurrer.
The proper tribunal for tlie decision of the claim raised
by this bill was a court of law. The plaintiff might
possibly have filed his bill for discovery in the ordinary
way — though even as to that he might have had as full
discovery at law as in this Court. But he cannot mix up
with a bill for discovery a claim for relief which was
properly cognizable in a court of law. The bill asked
first for discovery, and then went on to ask for such an
account as would ordinarily be tried before a jury. His
claim was, to be paid the amount to which he was entitled
by commission on the sale of goods. There was no
allegation of mutuality in the accounts, or of any confi-
dential relation between the parties. The bill prayed,
indeed, that Bayley might be declared to be the agent of
the defendants; but that was only one part of the
plaintiff's title at law*
Arguments
216
CASES IN CHANCERY.
1863.
Argument^
In Dinwidde v. Bailey {a)^ a bill was filed by aa
insurance broker for an account of money paid and
received by him in that capacity on account of the
defendants^ and money due to him for commission, and
for promissory notes, and to restrain an action as brought
contrary to the usual custom; but a demurrer was
allowed to the bill on the ground that the proper remedy
was at law.
In PkUlips y. Phillips (ft), a demurrer was allowed to a
bill seeking an account on the ground that there was no
mutuality as to the account except as to a few payments
which were matter of set-off, though the bill alleged that
as to particulars the defendant had acted as agent of the
plaintiff.
In Padwick v. Stanley^ (c), it was held that it by no
means followed that, because a principal had a right
against his agent, the agent had a right against the prin-
cipal. It was submitted on these grounds that the
demurrer must be allowed : Pearce v. Cresswick (rf), was
also cited.
Mr. Bacon and Mr. Fitzhugh for the bill.
The plaintiff, though he might have some remedy, could
not have complete remedy at law, and on that ground alone
this bill could be sustained: Adley v. The Whitstable
Company (e). That a plaintiff could have relief in ad-
dition to discovery has been laid down in Byle v.
Haggle {f). In that case Sir Thomas Flumer said,
" Where a party comes here properly for the discovery,
the Court is never disposed to occasion a multiplicity of
suits by making him go to a court of law for the relief.
Possibly the plaintiff might have obtained some account
at law, but the jurisdiction of this Court on matters
of account was concurrent with that of courts of law.
(a) 6 Yes. 136.
(») 0 Hare, 471.
\o) lb. 627.
(d) 2 Hare, 286.
(e) 17 Ves. 315.
(/) lJ.lcW.284.
CASES IN CHANCEBT.
and this Court would not fetter itself by an inflexible
rule as to matters of account : North-Eastem Raiboay
Company v. Martin (a). {Mackenzie y. Johnston {b) was
also cited.) See Smith y« Leveaux^c), Foley t. HiU{d).
The Vice-Chancellob : —
The substance of the plaintiff's case is^ that he was
employed by the defendants to obtain orders for goods
manufactured by them, and that he was to be allowed
remuneration in the shape of commission upon the amount
of all goods sold under orders which were obtained
through his exertions. Upon that he comes to the Court
and prays relief, first in the shape of a declaration that
the defendants are bound by the letter of their agent,
which promised the remuneration, and next he seeks an
account of all orders received and executed by the
defendants through his exertions, and to have it ascer-
tained how much is coming to him for commission in
respect of the quantity of goods so sold. It is said in
8upix>rt of the demurrer that at law he might recover
in an action the whole amount of that commission which
he seeks to recover by account in this Court. In
order to recover at law, however, he must be able to
prove what orders have been received, how much has
been sold by the defendants, and what has been received
by them in respect of the sales, in order to ascertain the
amount of the commission. It is plain, from the
allegations in the bill, that, as the transactions of sale are
transactions by the defendants and not by the plaintiff,
there must be in the custody of the defendants that whicli
affords material evidence for the plaintiff to enable him to
recover at law or in equity. It cannot be denied that a
bill for discovery would lie. The argument that this
Court has lost its jurisdiction in regard to discovery
217
1S63.
Shbfahd
Browv.
Argument,
Judgment,
(m) 2Philh7d8.
(») 4 Mad. a 373.
(c) 1H.&M.122.
(rf)2H.of L.C.28.
2id
CASES IN CHAKCEllt.
1863.
Shepard
V,
Brown«
JudgfnenU
because since the recent Act coarts of law have had
given to them a jurisdiction of discovery is an argument
not to be countenanced. I know of no authority to
justify me in holding that this Court has lost the power
to enforce discovery.
Where the case of the plaintiff is one in which he
seeks an account of transactions and dealings with the
defendants^ the evidence of which transactions must
remain principally, if not entirely, in the hands of the
defendants, it is extremely difficult to say that, upon a
bill seeking an account of iliat kind upon a case so stated,
this Court has no jurisdiction*to entertain it.
Lord Cottenham, in the case cited of Hie North-
Eastern Railway Company v. Martin, decided that,
upon a question of account, where courts of common
law and of equity have concurrent jurisdictiooj if a
question arise, whether the remedy for an account should
be at law or in equity, it should be decided with a
view to the most convenient mode of having the
question decided. In some cases it may appear very
plidnly that the question would be more conveniently
decided at law : in others, that it may be more conveni-
ently decided in a court of equity. In the case of
JDinwiddie v. Bailey, where a bill was filed by a broker
for an account, in order to enable him to recover the
amount of his commission, Lord Eldon said, ^ It is clear
this case might be disposed of altogether at law. It is
another question whether the jurisdiction of this Court
might not attach upon it." If the jurisdiction for
discovery be allowed, it is difficult to see upon what
principle this Courtcan refuse relief, where the question is
one of convenience.
In the case of Mackenzie v. Johnston, Sir John Leach
had before him, on demurrer, tiie case of a bill filed
by a principal against an agent whom hehad employed to
sell goods for him. That is like this case, except that
CASES IN OHANCERT.
here the bill is by an agent against his principaL It was
not — ^it could not be— doubted in Mackenzie v. Johnston
that an action at law would liei and the demurrer was
argued on the ground of the question being one to be
properly tried in a court of law. In overruling the
demurrer. Sir John Leach said, ''The defendants here
were agents for the sale of the property of the plaintiff,
and wherever such a relation exists a bill will lie for an
account. The pldntiff can only learn from the discovery
of the defendants how they have acted in the execution
of their agency, and it would be most unreasonable that
he should pay them for that discovery if it turned out
that they had abused his confidence; yet such must be
the case if a bill for relief will not lie.* Lord Eldon, in
the case of Adley v. 3%e WkUstable Company, observed,
'' It is said that the party may have a discovery
[which is what would happen here, the jurisdiction as
to discovery being admitted] and then go to law.
The answer to that is, that the right to discovery carries
along with it the right to relief in equity." Why ?
Because, when relief is sought in^the shape of an account,
courts of law and equity have, generally speaking, a con-
current jurisdiction. Sir Thomas Plumer, in the case of
ByU V. HaggiCi states precisely the same view. In
the case of Pearce v. Creswick, Sir James Wigram
does not state any one proposition, nor does he decide
the case in any way which supports the argument in
&vour of this demurrer. The case, then, is this: it
is one in which, either at law or in equity, an ac-
count must be taken; one in which the right to dis-
covery in equity is admitted ; and what I have to decide
is, whether, since the late Act of Parliament, there is no
longer any jurisdiction to direct an account. I should not
be justified in taking any such view It is very true that
in the case of Phillips v. Phillips Vice-Chanceller Turner
said that^ in order to maintain a bill of this nature, there
219
Sbbpakd
V.
Bbowh.
JudgmstU.
220
CASES IN CHANCERT.
1863.
Shbpard,
V.
Bbown.
Judgments
must be mutual demands^ and that each of the parties
must have received and paid money on account of the
other. And he said that it would require a strong
case for a court of equity to entertain a bill for an
account when the account is all on one side. In the
present case it may possibly appear that the account is on
one side ; but it [would be hardly fair to assume that
This is a case in which the plaintiff might have had
in this Court a discovery (which is a remedy in fud of
the right of account), and I cannot send him out of this
Court to seek relief in a court of law. I must therefore
overrule this demurrer.
GASES IN CHANOERT. 221
O'BRIEN V. LEWIS.
1 HIS amended bill was filed by the plaintiff praying — j^ gift made by
1. That it might be decreed that the defendants were ^^^f^r^ ^^
liable to pay to the plaintiff 300/. improperly retained by during the
them as aforesaid^ with interest thereon at the rate of 5L of the profes-
X slonal relation
per cent. between them
2. That an account might be taken of all sums of ^s invalid;
, therefore,
money received by the defendants^ or either of them^ or where a client
for their use as solicitors, attomies, agents, or otherwise, subsiiSence of
on behalf of the plaintiff; or which were paid to the JS^hS^soUci^
defendants while acting as attornies or solicitors for the tor to retain a
plaintiff in respect of matters in which they were acting out of moneys
on his behalf; and also an account of all sums paid by ^J*,*^on a*^*
the defendants to the plaintiff, or on his account, which ^^ ^J)^^
'^ , dientfbran
the defendants were entitled to deduct firom the monies account the
so received by them as aforesaid. That the account a general ac-
might be taken with annual rents, and that, if necessary, Action that
in taking such account the defendants might be charged the defendanti
-^ , .1 A «^^. . t . • -I were not to be
with the said sum of 300/. so improperly retained as allowed the
aforesaid, and also with interest at 61 per cent per o^eredt£e^^
annum on the balances for the time being in their hands; defendants to
^ pay the costs
and that the defendants might be decreed to pay to the of the suit.
pbuntiff the balance which should be found due to him on
taking the account.
The bill alleged that the defendants were solicitors
and attornies in partnership, carrying on business at 10
Ely Place, Holbom, and were employed by the plaintiff
as his solicitors and attornies for the first time in the
year 1850, and were employed by him up to the year
1861. The bill alleged that the matters in which they
were employed professionally consisted in recovering
222 CASES IN CHANCERY.
1662. debts due to him from various persons, and in settling his
0*BiiiBir pecuniary afffurs and difficulties.
Lbwib. The bill alleged that the defendants did not deliver
g "J to the plaintiff any bill of costs in respect of tiie matters
in which they were employed, but when moneys were
received by them for the plaintiff, such moneys were
usually received by the defendants, who sometimes
deducted thereout lumped or specified sums, which they
alleged to be their costs, or due to them for costs, and
paid to the plaintiff the residue ; and at other times paid
to the plaintiff a portion of the sums received by them
in respect of such debts and matters, and had concealed
from the plaintiff the amounts actually received, and re-
tained for themselves all the residue of the moneys
received by the defendants in respect of such [debts and
matters, without rendering any account to the pliuntiff
of the sums, or of the items for which deductions were
made; and the defendants sometimes alleged that they
were entitled to retain such residue and excess, not as
being the amount of costs properly due to them, but as
being an excess above what the pluntiff would have been
willing to accept as a composition for such debts, and that
therefore he was not entitied to such residue or excess.
During the whole period during which the defendants
were employed by the plaintiff they were his confidential
solicitors, and he acted under their advice ; and, having
no other professional assistance, he did not know that he
could compel them to deliver bills of costs to him under
such circumstances ; besides this he did not consider it
prudent to oppose them, for he was at and during the
whole time he so employed them in pecuniary embarrass-
ment, and he had upon a few occasions, in the course of
such employment, and pending such transactions, applied
to the defendants for temporary loans of sums of money,
whicli were made to him, but which, however, have been
all since repaid: in fact, the embarrassments of the
CA8£S IN CHANCERY.
223
plaintiff increaaed npon him during his connection with the
defendants, and the plaintiff was on one or two occasions ar-
rested for debt, and was imprisoned in the Queen's Prison;
and vesting orders, which have been since vacated, were
obtained against the plaintiff from the Insolvent Court,
and on all such occasions the defendants acted as his
solicitors, and the plaintiff was alt<^ether during such
transactions in the hands of the defendants, and has not
been until within a short period before the filing of this
bill in a position to compel the defendants to account to him
for what they had on his behalf and in his said business.
In 1852 the plaintiff brought his action on certain bills
of exchange for sums between 8002^ and 9007. against
Mr., now Sir Bobert, Clifton, who owed the pluntiff a
forther sum of 500L and upwards. Mr. Clifton filed his
bill in this Court for an account and to restrain the action.
The present defendants acted as the plaintiff's solicitors,
and put in his answers in that suit. Mr. Clifton's solicitor
was Mr. Davis. On the Sd April Mr. S. C. H. Lewis
met the plaintiff in the street, and said tiiat Mr. Davis, on
behalf of Mr. Clifton, wished to settie witii plaintiff, and
if the plaintiff would give up the said bills of exchange
and certain letters, and drop his prosecution of Messrs.
Davis for an assault, and release plaintiff's claim on
Mr. Clifton, the latter would pay plaintiff 800/.; plaintiff
in reply siud his claim against Clifton exceeded 800/. in
respect of other sums. Whereupon S. C. H. Lewis said,
*' Agree to tiie 800L, drop the proceedings against Davis,
and 111 get you the difference," and fixed an interview
for carrying out such arrangement. When plaintiff
arrived at the place of meeting he found J. P. Davis
there. The costs due to them for litigation with B.
Clifton were hurriedly called over in lump sums, and
were made out to amount to 130/., from which 10/. was
deducted at Davis's request, and then 800/. was paid by
Davis to the defendants for the plaintiff's use for the debt
VOL. IV. 9
ises.
O'Bkibv
Lbvis.
Statement,
statement^
224 CASES IN CHANC£RT«
ises. claimed from Cliftonj and 120/. was paid by Davis to the
O'Bribv defendants for costs, whereon the phdntiff signed for
Lbwib. delivery to Davis a general release of all demands which
had been prepared by the defendants. Afterwards these
letters had been procured from Mr. Kealy by paying him
the money for which he clidmed to hold them, and were
delivered to Davis ; no receipt was asked for or given by
the plaintiff for 800/. J. P. & D. J. Davis were after-
wards sentenced on their conviction (for an assault) to a
nominal punishment only. The plaintiff believed that
no money was received by the defendants except the siud
120/. and 800/., but he afterwards learned that Mr.
Clifton or his father had been charged lOOOi. for the
money paid in addition to the 800/. and costs. The bill
then proceeded as follows: —
The defendants accounted to the plaintiff for SOOU
only, part of the sums received from the said Mr. Davis,
and appropriated the sum of 300/. the residue thereof
and said costs to their own use, although the said sum
was received by them while acting as the solicitors for
the plaintiff, and on account of the said settlement, and
of his claims as aforesaid and arising thereout, and ought
to have been paid or accounted for to the plaintiff The
defendants admit that they so appropriated the said sum
of 3002. besides the said costs, but they allege that the
plaintiff made them a present of, and told them to retain
300/. (part of the said sum of 800/.) and to keep the
same as a present to them the defendants. Such allega*
tion, however, is altogether untrue. The plaintiff did
not make the defendants a present of the said sum of
300/., and the plaintiff charges that, even had he told the
defendants to keep such sum of 300/. as a present, they,
the defendants, would not be entitled to retain the same,
inasmuch as being the solicitors of the plaintiff they had
no right to make a gain at the expense of their said client
in the said arrangement with the said B. Clifton and
J. P. Davis.
CASES IN GHANCERT.
225
In 1854 the plaintiff, through the defendants, recoyered
a judgment against Lord Conjers for 1200/. In 1859
Lord Conyers filed a bill against the plaintiff and the
defendants in this Court to restrain proceedings on that
judgment. The defendants put in an answer, and the
plaintiff also filed his answer through Mr. Foulger. The
suit did not proceed beyond the answer. The defendants
daimedjto be interested in the matters in question in that
suit onaccount of a lien for 22SL, which they claimed partiy
for money lent to the plaintiff and partiy for costs, on the
security of the judgment as well as on other securities*
In 1860 the claim against Lord Conyers was paid with
interest and costs, including the said 225/. to the present
defendants, and such suit was dismissed. The defendants
received the 225L, and accounted to the plaintiff for a
sum which they stated to be the residue of the sum
which they stated they had received in respect of such
principal, interest and costs, and matters.
The way in which the 225/. claimed by these defen-
dants to be due to them was made up was explained
verbally only to the plaintiff by the defendants, and he
was told it consisted of the sum of 158/. for costs in the
matter of Don and Ward, and small sums of cash
advanced to the plaintiff, the interest thereon, and of two
other sums of 55/. and 12/. respectively, of which 55/.
had been lent to the pliuntiff by G. C. H. Lewis, and the
12/. was expressed to be added for sundries and contin-
gencies; the three said sums of 15SL, 55/., and 12/.
making up together the said sum of 225/. The bill
alleged that the defendants pretended that, in addition to
the sum of 225/., a further sum of 20/. for money lent to
the plaintifiF was due when they filed their answer, and
that they omitted through inadvertence to claim the said
20/., but the allegation was untrue, and was a mere
afterthought. Soon after the answer in Lord Conyers's
suit had been filed the plaintiff gave G. C. H. Lewis a
cheque for 55/.^ which was paid, in 18.60. After the sum
Q2
1869.
O'Brzxk
V.
Lxvzi.
CASES IN CHANCERY*
1862.
O'Bbien
Lbwxs.
Statement
of 225/. had been paid plaintiff asked G. C. H. Lewb for
the said 552.: he replied, '^ Oh, we will look up the account
and see what you owe us/' or words to that effect. The
defendants had not subsequently demanded payment of
any costs, and the plaintiff was not indebted to them on
any other account.
The defendants allege that on the 28th August, 1861,
the plaintiff owed them a large sum for costs, but in their
answer in Conyers v. O'Brien they had no claim for costs
beyond 150/., which has been since paid. On the 1 8 th
March, 1861, an order of the 4th September, 1860>
Testing the plaintiff's estate in the provisional assignee of
the Insolvent Court was vacated, and nothing was then
due or dumed for costs from the plaintiff by the defen-
dants, who themselves prepared the affidavits filed when
the order was vacated. All the costs since incurred
by the plaintiff to the defendants had been paid except
trifling sums for vacating the vesting order, and obtain*
ing a writ of habeas which the plaintiff has always been
ready to pay for. The plaintiff, being unable to recover
the said 55/., and about the middle of the year 1861 being
no longer indebted to or under the influence of the
defendants, in August, 1861, applied to his present
solicitor to aid him in obtaining payment of the sum of
55/., and for an account of all other matters. Mr. C«
Lewis, the plaintiff's present solicitor, wrote insisting on
an account, which the defendants refused, but ultimately
sent the plaintiff's solicitor a cheque for 55L payable to
the order of John O'Brien, Esq., re Conyers^ but they
did not furnish the account required. The plaintiff
thereupon filed this bill. The 10th paragraph of the
bill was as follows: —
The plaintiff charges that the defendants are bound to
pay to the plaintiff the balance of the said sum of 120/.
paid to them by Robert Clifton as aforesaid, and any
other sums paid to them for costs after deducting thereoat
the amount actually due to the defendants for costs in
CASES IN CHANCERY.
227
the said matter, which ended in the said arrangement
with the said Bobert Clifton, which costs the phdntiiF
believes could not amount to more than ZSL or there-
abouts.
The defendants bj their answer admitted having acted
as the plaintiff's solicitors and attorneys in the matters
and during the time mentioned in the plaintiff's bill.
That they delivered no bill of costs, and that when
moneys were recovered by them (the defendants) it was
undoubtedly received by a member of the firm* They
admitted that, und^r the circumstances thereinafter set
forth in the action by the plaintiff against E. B. Clark,
they retained 50/.. and in the action by the plaintiff
against General Charretie 10/. out of the moneys received,
both of which sums were retained for costs. They
alleged that they had the residue of the moneys recovered
to the plaintiff, and denied that they ever retained any
other sums. That with the above exceptions and with
the exception of 9/. 12s. in respect of the arrangement
with Mr. Forbes they paid the plaintiff the whole sums
received by them in respect of debts and matters in
which they were professionally employed by the plaintiff
soon after they received them. They denied conceal-
ment. They alleged that the plaintiff frequently, both
oraUy and by letter, admitted and acknowledged to them
our kind and generous behaviour towards himself, and the
ability and industry with which they had conducted his
business. That the plaintiff must have known that he
could compel them to deliver their bill of costs ; he often
boasted of his knowledge of the law of England and
Scotland, and resided in Edinburgh, where he was called
a consulting Scotch agent. The plaintiff never demanded
a bill of costs. They admitted that during the time they
acted as his professional advisers the plaintiff was in
pecuniary difficulty, and applied to them for temporary
loans of small simis of money, which were invariably lent.
They admitted that on or about the 2nd March^ I860,
1SC2.
O'Brien
V,
LXWIB.
Stattment,
228
CASES IN CHANCERY
1862.
O'Bbikn
V.
LBWI8.
statement.
Mr. Foulger, then acting on behalf of the plaintiff^ repaid
Mr. G. C. H. Lewis 30/. for advances made, but the
sums advanced to the plaintiff by Mr. J. Gr. Lewis were
not repaid except that he received the same out of the
sum of 225/. received bj the defendants in the suit of
Lord Conyers v. O'Brien. That the sum of SSL was
returned after the defendants received the sum of 225^
With respect to the several matters arising out of the
plaintiff's transactions with Sir Robert Jukes Clifton^
stated in the 3rd paragraph of the bill^ they denied
that they, as plaintiff's solicitors^ ever brought any action
against Sir B. J. Clifton, but stated that Mr. T. Gill,
acting for the plaintiff, brought such action to recover
406/. due from him on a bill of exchange to the plaintiff.
The plaintiff had three bills of exchange of Sir K J.
Clifton for 1000/., 640/., and 360/. respectively, and en-
dorsedto one H. Harrison, of Hart Street, who sued
Sir B. J. Cliflon, who in 1851 filed a bill against the
plaintiff and Harrison charging that the plaintiff had
obtained from him by fraud and misrepresentation bills of
exchange for sums amounting in the whole to 200/. In
this suit Sir B. J. Clifton employed Mr. J. Phineas
Davis as his solicitor, and they (Messrs. Lewis), on a
return in writing, acted as his solicitors and gave instruc-
tions to counsel for his answer. No answer was put in;
the plaintiff having told Messrs. Lewis that he would do
anything to avoid putting in an answer to the bill, and
that he was most desirous to have the matter settled, and
that if we could get the matter arranged by his giving
up certain letters in his possession he would make us a
present of 300/. besides paying us our fair bill of costs
in the matter, for that there were certain letters which
had passed between the parties that he was most anxious
not to have disclosed, as being most damaging to the
character and reputation of himself and Sir B. J. Clifton,
and gave us copies of the correspondence. The answer
then referred to an account in the handwriting of and
CASES IN CHA.NCERT.
229
signed by the plaintiff and dated the 12th May, 1852, in
which he only took credit for 500/. instead of 800/. which
was paid by Mr. Davis for Sir B. J. Clifton, being the
800/. less the 300/1 promised to be given by the 'plaintiff
to Messrs. Lewis. The answer then set forth the cir-
cumstances under and the terms on which the suit of
Sir B. J. Clifton against the plidntiff was stayed. The
answer then stated that on Mr. Davis paying Messrs*
Lewis the said sum of 800i. he told the plaintiff '' he
thought he had made a good bargain," to which the
plaintiff replied '' he might thank us [Messrs. Lewis] for
it,'' though they [Messrs. Lewis] had made a good thing
of it, as he had engi^ed to make them a present of 300/.
out of the money paid by Sir B. J. CliAon; and the
pUintiff, before leaving the house of Mr. J. G. Lewis,
directed him, on behalf of his promise, to retain 300L as a
present, and to give him, the plaintiff, 50/. of the money
just received on plaintiff's account, which he did. The
answer alleged that the plaintiff never demanded any
account, but in his own handwriting, as follows: —
1862.
O'Bribv
V,
Lbwis.
SMeiMHt.
"Ha. J. O'Bbish xh accouht
Dr.
April 8rd. B§ Kealy
Self .
,1 drd. Qny .
„ 10 Self .
£
1S2
. 50
. 40
. 30
18 Self ... 200
Through Gen.
Cbairetie • 26
Through Mr.
Sterens. . 100
Bank Poet-
bm, dated
Haj 11th . 100
WITH TBB MBBfilXUaS LBWXS.
Or.
t. d,
0 0
0 0
0 0
0 0
£W 0 0
n9 Clifton 600
Ditto ...... 406
Ditto 100
Interest upon the two
lastsuma .... 15
d.
0
0
0
5 0
1021 5 0
727 0 0
Balance in my fftTOor £294 5 0
(Signed) "JoHir O'BazsK.
« Parity Map l%lt6i^*'
230
1862.
Statement,
CASES IN CHANCERY.
The defendante alleged that they did in the course of
the year 1852 duly account for the balance in an account
set forth in the answer. The answer then set forth at
great length and particularly the circumstances under
which the defendants were employed by the plaintiff.
Arguments Mr. Bacon and Mr. Jessel for the plaintiff.
The rule was now well settled that, except under cir-
cumstances which did not exist here, a solicitor could not
take or receive a present from his client during the sub-
sistence of the professional relation, or while the influence
which the rule of law ascribed to a solicitor oyer his
client was in force. This was now the settled rule of
this Court, and every branch of the Court had acted on
it. In this case there were also the additional circum-
stances that the client had been, during the time he
employed the defendants, in pecuniary difficulties, and
also that the money which he had alleged to have made
a present of was never in his hands, but had been retained
by the defendants. In all the cases where the phiintiff
had failed in obtaining the relief prayed the rule was
admitted.
In Montesquieu v. Sandys (a) the evidence fSuled, and
the rule was dismissed without costs* In the Marquis of
Clanricarde v. Stenning {b) the bill was dismissed without
costs in consequence of the length of time that had
elapsed. But in Gresley v. Mousley (c) relief was granted
after the lapse of eighteen years. Under these drcum-
stances it was submitted the plaintiff was entitled.
[Lord Harduncke v. Vernon {d) was also cited.]
Mr. Malim and Mr. Brooksbanh for the defendants.
(a) 18 Yes. 302.
(ft) 30 Beav. 175.
(c) lGiff.450;B«c.4DeG.&
J. 78.
(d) 4Ve8.4]l«
CASES IN CHANCERY.
231
It was not pretended in this case that there had been
any fraud or conceaknent on the part of the defendants^
or mistake or ignorance on the part of the plaintiff*
This circumstance distinguished it from the other cases
falling within the same general class. Neither had there
been any complaint or remonstrance hj the defendant
during nine years^ but on the contrary he had habitually
drawn money as he required it from the defendants, and
bad himself furnished an account in his own hand-
writing, in which the retention of 300iL was never
questioned. There had been uberrima Jides on the part
of the defendants.
Where this course of dealing with full knowledge has
been acquiesced in during a long period, a gift by a client
to his solicitor is not void^ though undoubtedly it will be
regarded with jealousy by this Court, and a satiafactory
explanation required.
In Hatch V. Hatch (a) the Court set aside a gift from
a ward to her guardian under the special circumstances
of that case, but because the Court was not satisfied that
it was made upon well-informed consideration, such as
was abundantly proved here. In Harris v. Lard Tre^
menheere (i) Lord Eldon^ being satisfied that there had
been no fraud or misrepresentation, said (c), ** I cannot
find any decision authorizing me to say that the de-
fendant should not have taken the leases [the subject
matter in dispute] as the pure gifl of his employer ;" and
again he said, ^^ There is no evidence of misrepresenta-
tion, circumvention, or any thing improperly leading the
testator to make these leases." In that case Lord Eldon
dismissed the bill impeaching the gift. This was in
truth the doctrine on which this Court acted. In order
to set aside a gift of this kind the Court must hold that
the fairness of the transaction cannot be shown.
1862.
0*fiRIllIC
V,
L£wi8.
Argument.
(a) 9 Yes. 292.
{b) 15 Yes. 34.
(6J lb. 39.
232
CASES IN CHANCEBT.
1862.
O'BRiBsr
V,
Lewis.
Argument*
In Tomson v. Judffe (a) Vice-Chanoellor Eindersley
Ignored the decision in Harris v. TVemenheere, and relied
on the language in Hatch v. Hatch.
iHouffhton V. Houghton (J), CooAe v. Lamotte (c),
-E&/me5'5jFrfaftf(d),Garre«v.TFifttVw(>n(e),were also cited
JudgmMi. The Vice-Chancellor :—
This suit has two objects [which are materially con-
nected with each other* The question mainly argued
has been the right of the defendants to retain the sum of
300/. as a gift or present^ which they insist was properly
made to them by the plaintiff as their client. The other
question with which that is materially connected is as to
the right of the plaintiff to an account of all the dealings
and transactions between the defendants and himself
during the time they acted as his solicitors. The
plaintiff seems to me completely to have established his
case upon both points. During the argument upon the
question whether the defendants could insist upon the
sum of 300/. as absolutely given to them by their client,
the plaintiff, I took an opportunity of calling the attention
of counsel to the decided cases, and to the rule which is so
clearly laid down as to make it in my opinion impossible
to sustain this transaction as a valid gift. It is neverthe-
less, after the many observations I have made upon the
subject, needless to go more minutely into the circum-
stances which seem to] me to make this gift invalid. It is
enough to say now that it was a transaction alleged to
have been a gift which took place during the subsistence
in its fullest influence of the relation of solicitor and
client. And although it is called a gift, it has this
remarkable feature, that the money which was the subject
of the transaction never was in the hands of the pldntiff
{a) 2 Drew. 414.
(h) 16 Beav. 278.
(c) 15 Beav. 234.
(d) 8 Giff. 337.
{e) 8 De G. & 8. 244.
CASES IN CHANCERY.
233
to give. The gift is said to have been made by a parol
direction to the solicitors to retain it as a present.
After what has been so clearly laid down in this
Courts it cannot be said that a mere parol direction of
this kind^ given daring the subsistence of the relation
between solicitor and clientj can amoimt to such a gift or
such an act of bounty as is not to be set aside, unless
there is clear evidence of circumstances to remove thi(t
pressure which the Court always presumes where the
relation of solicitor and client is proved to exist. There*
fore> upon the question of the right of the plaintiff to
have that sum of 300/. accounted for I have no doubt
whatever.
With reference to the other question— the plaintiff's
right to have an account of the dealings and transac*
tions between him and the defendants — the case is equally
clear in favour of the plaintiff. It has been contended
that the account might be taken under a different jurisdic-
tion, and that all that is here asked in a long and
expensive suit might have been attained by a short
petition at the Rolls. But it has never yet been held that
that the summary jurisdiction at the Bolls excludes the
right of a client to file his bill against his solicitor, and,
where there have been pecuniary transactions between
them, to have the account regularly taken between them
by the Court under its general jurisdiction.
The plaintiff having succeeded upon both points, a
great deal of time has been consumed in endeavouring to
show that the conduct of the plcdntiff has been such, and
the conduct of the defendants towards him so liberal, and
that the whole case is brought before the Court by the
phdntiff under such circumstances, as that if the Court
should make a decree in his favour it would not give him
the costs of the litigation. Upon the question of costs
I referred counsel to what was said by Lord Eldon in
1803.
0*Bribn
V.
Lbwis.
Judgment,
234
GASES IN CHANCERY.
18C2.
Judgment.
the case of Harris v. Lord Tremenheere. In cases o f
this kind^ where the Court has to decide whether the
gift is valid, the Court acts upon the high ground of public
policy, and although the transaction may have been as
reasonable a one as ever was entered into, and aldiough
the motivefor the gift may have been natural and proper,
yet it has been held by all the greatest judges in this
Court that upon the ground of public policy a gifk under
such circumstances shall not be permitted to stand.
The question haying to be disposed of upon the ground
of public policy, the right to costs where the gift is set
aside follows as a matter of course. I do not say that in
some cases there may not be such extraordinary conduct
in the course of the litigation, or in the mode of raising
the question, as might induce the Court, in the exercise
of that discretion which it always reserves to itself on
the subject of costs^ to make some modification of the
strict rule ^that the defendant is in that case to pay the
costs. But there is nothing in the present case to induce
me to relax that rule which public policy requires to be
observed, and the defendants must, therefore, pay the
costs of the suit.
Decree for a general account, with a direction that the
defendants in taking such account were not to be allowed
to tetun 300/.
I
OASES IN CHA5GERT. 235
1863.
J>M. 11, 13,
PRICE ». LEY. ^ilhP''^
N July, 1861, the plaintifF, requiring a house on the A 7®*^^?'
south coast of Devonshire, ascertained that the <le- of a home
fendant had a suitable house for sale called '' The Hill/' purchuef
at Teignmouth, and caused a Mr. West to apply gn^Kil
to the defendant to know whether he would let the andinheri-
tanco for
house. In answer to such application the defendant S5002., and
sent to Mr. West the foUowing letter :— iS^a^d^JSn-
tract to pur-
cha»e to the
'« The Hill, purchaser,
''22nd July, 1861. I^^ec^^^!"
** Dear Sir, — It would not answer my purpose to let ^^*^e
The HiH; I can only sell, and the lowest price is covenants in
oic/v^7i» ' -^ ' ^ the lease. It
2500/ • appearbig that
one-fborth of
the property
In consequence of this letter the plaintiiF went to see ^^^^^J*^^**'
the house, and some negociation took place between having
him and the defendant about the price, the defendant action for the
refusing to take less, and telling the plaintiflP that he had ^^e^^
placed the house in the hands of a Mr. Cotton, who biuaiedby
the purchaser.
told him there would be no difficulty in getting 2500/. the Court set
for it. Mr. West then obtained from Mr. Cotton's ^ntoadt!
clerk a copy of an advertisement, which was in the Onabiuto
^"^ ' set aside a
following terms : — written in-
strument on
the ground of
« Teignmouth, South Devon.— To be sold, with im-^ SSiS'e,''paroi
mediate possession, a delightful freehold family residence, ©vidence is
within one mile of the railway station, standing in about to show that
three and a half acres of ground, commanding most mentu^onl
extensive sea and land views. The house contains j!^e^*J*®f
double drawingrroom, dining-room, library, eleven bed- the contract,
^ A ' 1-x I. 1. u ^ andthatit
roomsj two axessing-rooms, kitchen^ housekeepers^room, ought to be
set aside.
236 CIASES IN GHANCE&T.
isas. pantrj^ and all necessary domestic offices ; three-stalled
Pbicb stablcj double and single carriage-houses^ hamesa-room,
^- laundry^ and loft over ; good yinery and garden : ad-
ditional land can be rented. — Apply to Mr. W. Cotton,
House Agent, Teigiunouth."
Statement,
The plaintiff, in the belief that the property was free-
hold, on the 31st July, 1861, wrote to the solicitors of
his trustees the following letter : —
'^ I saw the other day a house at Teignmouth which
would suit me, but it is for sale, and not to be let
I suppose, with the consent of our trustees, there would
be no particular difficulty in altering the investment of a
portion of the trust money from India Five per Cents to
a freehold house, stone-built and modern? I am told the
title is good and simple. A line by return of post will
much oblige
" Yours very truly,
"FowLBB B. Pbicb."
The solicitor of the plaintiff's trustees having informed
the plaintiff that the trustees would advance the money,
the pluntiff wrote to Mr. Cotton, agreeing to purchase
the house at the sum of 2500/., in reply to which Mr.
Cotton begged the plaintiff to meet the defendant at the
Queen's Hotel on the 6th August, in order to settle the
terms of the purchase.
The 5th, 6th, and 7th paragraphs of the bill were in
the following terms : —
'^ About this time the plaintiff was informed by the
defendant and first learnt that the defendant was not
actually seized of the freehold of the house, but that he
had only a lease or an agreement for a lease of it fof a
short term of years, with power to buy and require a
conveyance of the freehold from his lessor, Mr. William
GASES IN CHANCEBT.
237
Pearce Blake^ at any time during the term. The defen-
dant, however, represented himself to the plaintiiF as
being in equity the freeholder, and as being able and as
intending to obtain from Blake, and to convey to the
plaintiff, the legal fee simple of the property, and the
plaintiff entered into and continued and carried on nego*
tiations with the defendant on the faith of the defendant's
said representations, and on the basis of an understanding
that the plaintiff was dealing with the defendant for the
I^rchase, from the defendant alone, of the fee simple of
the property, and the defendant (believing at that time
that Mr. Blake had, and that the defendant could readily
acquire from him, a good title to the fee simple) dealt with
the plaintiff on the baais of the said understanding, and
on no other basis.
^' The plaintiff and the defendant negotiated with each
other for the purchase by the plaintiff and the sale by the
defendant of the fee simple of the property at the price
of 2500/., to be paid wholly to the defendant, and it never
was the intention of either of them that the plaintiff
should buy for 500/., or for any other sum, merely the
defendant's rights under his lease, or that the plaintiff
should be compelled to have any dealings whatever with
Mr. Blake. The plaintiff never would have entered
knowingly into any contract with the defendant for the
purchase merely of the defendant's interest under his
lease or agreement, or for the purchase of anything lesg
than the absolute fee simple with a marketable title, and
such as trustees ought to accept, and no proposal was
ever made by the plaintiff or the defendant prior to the
signing of the agreement of the 6th of August, 1861,
. hereinafter set forth, that the plaintiff should pay the
defendant 5001, or any other sum for the lease, or that
the plaintiff should buy the freehold from Blake for
20002., or any other sum.
''On the 6th of August, 1861, the plaintiff met the
1S03.
Pricb
Let.
Statemm$$,
238
0ASE8 IN OHANCERT.
1863.
Paicb
V.
Lbt.
Siatement,
defendant and Mr. Cotton at the Queen's Hotel aforesaid^
Mr. William Pearce Blake (with whom ike plaintiff had
never before had any communication) being present at
the meeting. Cotton produced the written agreement fo
sale^ and handed it to the plaintiff; and the plaintiff, who
bad no legal adviser present^ having satisfied himself that
the amount of the purchase-money was correctly stated^
signed the agreement without reading it throughout^ in
the full belief that it expressed accurately the under-
standing and intentions of the plaintiff and defendant, ai
mentioned in the 5th and 6th paragraphs of this bill, and
that it did not contain anything contrary to such under-
standing and intentions. The defendant also signed
another part of the said written agreement.
The agreement was in the following terms : —
" Articles of Agreement made this 6th day of August,
1861, between James Peard Ley, of tne Hill, Teign*
mouth, in the County of Devon, Esquire, of the one
part, and Fowler Boyd Price, of Parway, Honiton, of
the other part ; whereas, by Articles of Agreement dated
tlie 13th day of April, 1860, and made between William
Pearce Blake, of Ottery Saint Mary, in the County of
Devon, of the one part, and the said James Peard Ley of
the other part, it was agreed as follows (that is to say);—
The said William Pearce Blake agreed to let, and the
said James Peard Ley agreed to take, all that messuage
or dwelling-house called the Hill, with the lawn, shrub-
bery, garden, greenhouse, coach-house, and stable yards
thereunto belonging, and other the hereditaments then
held and enjoyed therewith, situate in Woodway Eoad,
in the Parish of East Teignmouth, in the said County of
Devon, imd then late in the occupation of William Ernest
de VeuUe, together with the appurtenances thereunto
belonging and appertaining, for the term of seven years,
to be computed from the 9th day of May, 1860, at the
yearly rent of 100?., payable quarterly, on the 9th day
CASES IN CHAiSGERY.
239
of August, the 9th day of November, the 9th day of
February, and the 9th day of May in every year, the
first of such quarterly payments to be made on the 9th
day of August then next ; that the said William Fearce
Blake, his heirs or assigns, would on or before the 9th
day of May then next execute a lease, if required, of the
said dwelling-house, hereditaments, and premises to the
said James Feard Ley, his executors, administrators, or
assigns, for the term and at the rent aforesaid, to be pay-
able as aforesaid. That in the said lease, to be granted
as aforesaid, should be contained covenants on the part of
the said James Feard Ley, his executors, administrators,
and assigns, to pay the said yearly rent as the same should
become due (save and except so long as the said premises
should become uninhabitable by reason of accidental fire).
And also all present and future taxes, rates, assessments,
and other outgoings whatsoever in respect of the said
premises (except land-tax and chief rent, and landlord's
property tax). And also (except in case of fire, storm, or
tempest) to well and substantially repair, and keep in re-
pair, at his or their own expense, during the said term,
all and every part of the said dwelling-house, buildings,
and premises so agreed to be demised, together with the
glass and other windows and fixtures thereunto belonging,
and all buildings, fixtures, improvements, and additions
whatsoever to be made during the term, external repairs
only excepted. And also not to underlet, assign, or part
with the possession of the said premises, or any of them,
during the said term of seven years, without the licence or
consent in writing of the said William Fearce Blake, his
heirs or assigns, first obtained ; nor do, or suffer to be
done, any act whatsoever for increasing the rate of in-
surance of the said premises ; nor carry on, or permit to
be carried on, on the said premises any trade or business
whatsoever, but use and occupy the same as a private
dwelling-house, nor permit any waste on the said pre-
VOL. IV. B
1S63.
Statement,
V.
Lbt.
Statenunt
240 CASES IN GHANOKRY.
1863. mises ; and at the end or sooner determination of the term
Pricb quietly to yield and deliver up possession to the said
William Pearce Blake^ his heirs and assigns^ of the said
dwelling-house and premises agreed to be demised; and
all future erections or additions to or upon the same,
together with all the fixtures in good substantial and
tenantable repair and condition in all respects (reasonable
use and wear thereof only excepted). And that in the
said lease so to be granted as aforesaid should be con-
tained a condition authorizing the re-entry of the said
William Pearce Blake, his heirs or assigns, into the said
premises, on nonpayment of the said yearly rent, or any
part thereof, for the space of twenty-one days ; or in case
the said James Peard Ley, his executors or administrators,
should become an insolvent debtor, or compound with his
or their creditors, or should make any assignment for the
benefit of his or their creditors, or on breach of all or any
of the covenants so to be contained, on the part of the
said James Peard Ley, his executors, administrators, and
assigns, in the said lease agreed to be granted as afore-
said. And that in the said lease should also be contained
a covenant, on the part of the said William Pearce Blake,
that in case the said James Peard Ley, Iiis executors or
administrators, shall, at any time during the said term of
seven years, be desirous of purchasing the interest of the
said William Pearce Blake, or his heirs, in the said
dwelling-house, hereditaments, and premises so agreed to
be demised, then the said William Pearce Blake, his
heirs or assigns, would take for the purchase thereof the
sum of 2000/., and would upon payment of the same sum,
at the costs and charges of the person or persons requiring
the same, convey and assure the freehold and inheritance
in fee simple expectant on the determination of the said
term of seven years, in the same hereditaments and pre-
mises, unto the person or persons so paying the said sum
of 2000/., and his, her, or their heirs and assigns, or as
8tatem$«t.
CASES IN CHANCERY. Ml
he, she, or they should direct. And the said James 1W»
Peard Ley, for himself, his heirs, executors, and adminis- Peiob
trators, thereby agreed with the said William Pearce j^*^^
Blake, his heirs and assigns, to accept such lease on the
terms and conditions as aforesaid, and execute a counter-
part thereof when required. Now, each of them the said
James Peard Ley and Fowler Boyd Price, so far as re-
lates to the acts and deeds on his part to be performed
hereby for himself, his heirs, executors, and administra^
tors, agrees with the other of them as follows (that is to
say) : The said James Peard Ley shall sell, and the said
Fowler Boyd Price shall purchase at the sum of 2500/.,
to be paid to the said James Peard Ley imniediately after
the execution of these presents, the benefit of the said
agreement, and of all^covenants, agreements, and stipula-
tions therein entered into with the said James Peard Ley,
and of all the remedies to be taken and pursued by virtue
thereof; that the said James Peard Ley shall, at the ex-
pense of the said Fowler Boyd Price, do all necessary
acts for causing the said William Pearce Blake to grant
to the said Fourier Boyd Price the lease in and by the
said agreement contained to be granted to the said James
Peard Ley ; that, in consideration of the premises, the
said Fowler Boyd Price shall perform all the covenants
and stipulations, on the part of the said James Peard Ley,
contained in the said agreement, and shall at all times in-
demnify him, his heirs, executors, and administrators, and
his and their estate and effects, from all actions, suits,
damages, and expenses, by reason of his the said James
Peard Ley's non-performance thereof respectively."
The nature of the defendant's interest was correctly set
out in the agreement At the foot of that part of the
agreement which was signed by the plaintiff, there was
written in pencil by Cotton a receipt for 250/., as a
deposit of 10 per cent on the purchase-money of 2600/.,
but the plaintiff objected to pay any deposit until the title
R 2
242
1868.
Pricb
V,
Let.
Statement.
CASES IN CHANCERY.
should be approved of by his solicitor. Cotton then re-
ferred to the defendant, who waived the clum for a
deposit.
The 11th paragraph of the bill was as follows: —
At the time of the said written agreement being signed
as aforesaid, some conversation took place between the
plaintiff and defendant as to the person bj whom the
house should be conveyed to the plaintiff. The defendant
proposed that Blake should convey the freehold directly
to the plaintiff, instead of to the defendant, and on the
plaintiff's suggesting that, possibly Blake might re-
fuse to convey the house to the plaintiff, the defendant
replied, '' That would not matter to you, as I should then
make him convey to me by the power contained in my
lease, and I would convey to you. It would entail the
enpense of an extra conveyance, but that would fall upon
me." Ultimately the defendant came to some private
arrangement with Blake, under which Blake agreed that,
in order to save expense, his solicitors, Messrs. Geare,
Mountford, & Geare, of Exeter, should, on the defen-
dant's behalf, furnish the necessary abstract of the title
direct to the plaintiff^s solicitors, and should on the de-
fendant's behalf act as the vendor^s solicitors, and that
Blake would, on receiving 2000/. from the plaintiff, con-
vey the fee simple to the plaintiff. The plaintiff had
nothing whatever to do with the making of this private
arrangement, beyond consenting at the defendant's re-
quest that, upon a good title being shown, and a convey-
ance of the fee simple being made to him by Blake, he
would pay 2000/. of this purchase-money to Blake, and
500/., the balance thereof, to the defendant.
Shortly after the agreement had been signed the
plaintiff sent a copy of it to his solicitors, Messrs.
Bothamley & Freeman, who were also the solicitors for
the trustees of his marriage settlement, when they as-
certained that the written instrument did not carry into
CASES IN CnANCERT.
effect the intention of the partiei. They immediately
infonned the plaintiff, who by their letter first became
aware of the fact, and they also wrote to the defendant's
solicitors the following letter : —
<' 39, Coleman Street,
" 10th August, 1861.
" Our client, Mr. F. B. Price, has forwarded to us an
agreement for purchase of premises at Teignmouth.
The agreement is not correct. Mr. Price is to pay
2000/. to Mr. Blake, and 5007. to Mr. Ley ; but by this
agreement he contracts to pay Mr. Ley 2500Z. for the
benefit of the agreement with M. Blake. This is clearly
an oversight, which we shall be glad to have corrected at
once."
243
1S63.
StatmnmL
In answer the defendant's solicitors wrote on the 12th
August as follows : —
" We have not seen this agreement. Mr. Blake is to
receive 2000/., his purchase-money under a contract
dated 13th April, 1860. Mr. Blake informed us that he
was to receive 250/. now as a deposit, and in part pay-
ment of his purchase-money."
On the 27th of August the defendant, in reply to a
letter from the plaintiff, wrote to the plaintiff in the
following terms : —
^* Some time since my brother wrote to me for the
agreement, as he said there was a mistake in the one
which your solicitors showed, which I certainly did not
remark until I heard from my brother, when I saw
yon had agreed to pay me 2500/. for my interest im-
mediately on the signing of the agreement instead of
5002., BO I sent it up to be altered ; but I have not heard
from my brother, who is now at Ufracombe. I did not
SMmMnU
244 CASES IN CHANCERY.
1669. read over the agreement before I signed it, bat con-
Pbiob eluded that as you and Cotton had done so it must be all
Lbt. right ; and I also in the same letter wrote to know if he
would take the hurdles and greenhouse plants, and on the
29th of the same month received from the plaintiff the
letter now produced and shown to me, and marked H. ;
and the plaintiff never replied to or noticed that part of
my sfud letter of the 27th August relating to the
mistake in the said agreement between us."
The 15th paragraph of the plaintiff^s bill was as
follows : —
The plaintiff, having been as aforesaid informed by
his solicitors of the said mistake in the written agree-
ment of the 6th of August, 1861, met the defendant
by appointment in Exeter on the 29th of Augost,
1861, and called his attention to it. The defendant
said at once that Cotton had made a great mistake.
The phuntiff replied, ^^ Though there has been a mistake
in the written agreement, our intentions are unmistake-
able. I look to you and to you only for a good title
to the property. The arrangement between Blake and
you was a private one between you two, to save the
expense of a double conveyance, but I have nothing to
do with it." The defendant assented to the plaintiff's
statement, and inquired when the plaintiff would take
possession of the house, to which the pltuntiff replied
'^ that he would take possession as soon as his solicitors
advised him that his title was good.**
The abstract was subsequently delivered, when it
appeared that assuming Mr. Blake's title to three fonrth
parts of the premises to be good he had only a lease-
hold interest in the remaining one fourth part. The
objection having been taken, and both Mr. Blake and the
defendant having unsuccessfully attempted to cure it, the
plaintiff on the Slst October, 1861, gave the defendant
CASES IN CHANCERY.
245
notice that unless a good title should be shown within
one month he should rescind the contract. The defendant
haying failed to remedy the defect, on the 6th December
fhe plaintiff gave the defendant notice that the contract
was rescinded and that he would not proceed further
with it.
The defendant thereupon brought an action, claiming
in his declaration 600/., and furnishing the following
particulars of demand: —
'' 1861. August 6. £ «. d.
Purchase-monej for sale of the benefit of an
agreement relating to The Hill, Teign«
mouth 600 0 0
One quarter's rent for the said premises, due
9th November, 1861, and paid byplaintiff 25 0 0
Wages paid John Horrell, the gardener, at
defendant's request, seventeen weeks,
firom 1st September to 29th December,
1861, at \%s. a-week 15 6 0
To plants (as per list and valuation) sold and
delivered bj plaintiff to defendant 16 3 6
£556 9 6
1S68.
Pricb
V.
Lby.
Statement,
" And the plaintiff will seek also to recover these sums
under the money counts. And, take notice, that the
purchase money sought to be recovered under the first
count is the sum of 500Z. only, the sum of 25007. having
been inserted in the agreement^by mistake, instead of the
said sum of 5007."
The plaintiff appeared to the action, and pleaded legal
and equitable pleas, to which the defendant demurred,
and the demurrers were allowed on the points of law.
The bill alleged that the plaintiff was advised that he
could have no adequate protection at law, and withdrew
the plea.
24G
CASES IN CHANCERY.
1863.
Pricb
V.
Ley.
Statement,
The bill alleged that the plaintiff never agreed to pay
the wages of the defendant's gardener, and only agreed
to take the plants provided the purchase of the house was
completed, or to pay rent for the house except so far as
the written agreement contained such stipulation* There
was in truth and equity nothing due from the plaintiff.
The 23rd5 24th; and 25th paragraphs of the bill were
as follows: —
" The written agreement of the 6th of August, 1861,
was entered into and executed by the plaintiff under the
circumstances and with the intention hereinbefore stated,
and not otherwise. The plaintiff's only object in entering
into it was that he might obtain a conveyance of the fee
simple at the price of 2500Z., and it never was intended,
either by the plaintiff or by the defendant, that the
plaintiff should pay the defendant 500/. or any other sum
merely for the defendant's equitable right to have a lease
from Blake, or that tiie plaintiff should pay either to the
defendant or to Blake any money at all until a good tide
had been shown and a valid conveyance had been made
to him of the fee simple of the premises.
" The defendant and Blake have not, nor has either of
them, and they cannot, nor can either of them, make or
acquire a good title to the lee simple of the premises;
and, therefore, even if the plaintiff were to take a lease
of the premises from Blake, he would be unable to acquire
the fee simple, and would not receive the consideration
he bargained for, or a sufficient consideration for the
500/. or any other money he might pay the defendant
under the agreement ; and if the agreement were reformed
according to the true intention of the parties as herein-
before stated the defendant would be unable specifically
to perform the same.
" The plaintiff has incurred heavy costs and expenses
in relation to the said agreement of the 6th August, 1861,
and to the said action, and he has been put to great
CASES IN CHANCEBY. 247
expense in providing himself with a residence instead of .^^^.
that which the defendant agreed to sell him, and he has
been otherwise injured bj the failure of the defendant to
convey or procure a conveyance to him of the freehold statement.
of the said house and premises agreed to be sold.
The bill prayed as follows —
That the said written agreement of the 6th of August,
1861, may be declared null and void and no longer
binding on the plaintiff or defendant, and that it may be
delivered up to be cancelled.
If the Court shall be of opinion that the said agree-
ment is not null and void, or ought not to be cancelled,
then that the said agreement may be reformed in accoixlance
with the true intent and meaning of the parties, and that
it may thereby be made an agreement by the defendant
to sell and by the plaintiff to buy the fee simple in pos-
session of the said house and premises at the price of
2500/., on a good title thereto and conveyance thereof
being made within a reasonable time, and that a specific
performance may be decreed of the agreement so
reformed.
The bill also prayed for an injunction.
The defendant in the 14th and 15th paragraphs of his
affidavit alleged as follows : —
14. No private understanding was come to between me
and the said Mr. Blake on or after signing the said
agreement of the 6th day of August last, but after the
same was signed the plaintiff asked for the names of the
said Mr. Blake's solicitors, and was informed by him they
were Messrs. Geare & Co., of Exeter.
15. I deny that the plaintiff on the 29th day of
August last called my attention to the mistake In the
agreement as alleged In the 12 th paragraph of his said
affidavit, or that I have admitted there was any mistake
therein, except the Insertion of the sum of 2500Z. instead
of 500/. ; but I say that, though I had written to the
248
18(».
Pkicb
V,
Lbt.
SiateimnU
OASES IN CHANCERY.
plaintifF on the 27tii day of August last offering to
amend the said agreement as before stated, the defendant
neither in writing nor verbally to me ever alluded in any
way to the said mistake, and I therefore supposed my
offer to amend was satisfactory to him, and I have not
since seen or heard from him.
Argumenu Mr. Malina and Mr. 7. Wright for the plaintiff.
It is quite clear the written instrument fails to express
the intention, which was, that the plfdutiff should purchase
the estate for 2500/. There was no stipulation as to title,
and the purchaser was therefore entitled to have a good
title made to the property: Ogilme v. Foljamhe{a)i and,
therefore, even admitting the contract was binding, it must
be rescinded on the question of title : Brooms v. Monck{h),
Here the real agreement was perfectly clear, that the
plaintiff should purchase the fee simple and inheritance
of the property ; but where a plaintiff has contracted for
the freehold he cannot be compelled to take a term of years
instead, however long : Drewe v. Corp (c) : or a copyhold :
Aylei V. Cox (d) : nor, having contracted for the entirety,
to take undivided parts of the estate : Dalhy v. Pulkn («).
In West V. Jone$ (f) Lord Cranworth said, (g) even where
a misrepresentation is made in the most entire good fiuth,
if it be made in order to induce another to act upon it,
or under circumstances in which the party making it may
reasonably suppose it will be acted on, then primd faeie
the party making the representation is bound by it as
between himself and those he has thus misled. [The
Attorney' Oeneral v. Stephens (A) was also cited.]
(a) 3 Mer. 53.
(b) 10 Ves. 697, 600.
(e) 0 Yes. 368.
d) 16 Beav. S8.
{e) 3 Sim. 29; s.c.lR.lcM.
296.
(/) 1 Sim. N. S. 205,
(g) Ibid. 208.
(A) 1 K. & J. 724.
OASES IN CHANCERY.
Mr. SoMffaUf in the absence of Mr. Baoon^ for the
defendant.
The bill really asks to set aside the Statute of Frauds^
by introducing a term in the agreement that Blake
should make a good title. This was no part of the
original agreement^ and could not be added : Th$ Mar-
qitiM of Taumshend v. Stangroom (a), Woollam v. Steam (i).
In Dames v. Fitton (c) Lord Chancellor Sugden laid
it down clearly (c{) that the Court could not decree specific
performance of an agreement with a variation of a term,
and, by parity of reasoning, it could not add a term in order
to make the agreement impossible to perform. Again : this
Court could not, consistently with the Statute of Frauds,
rectify an existing contract for the sale of land, and carry
it into execution when rectified, even though the mistake
was admitted (^by the answer: Attarney^'Gineral v.
SiiioeU{e).
[Martin v. Pycroft (/); London and Birmingham
Rcdboay Company t. Winter {g) ; Bartlett v. Salmon (A);
and Sugden V. ^ P., 204 (Ed. 13), were also cited.]
249
1S68.
Argument.
Mr. Baeonlon the same side.
There is a clear distinction between fraud and mistake.
In this case it was admitted that there was no fraud.
Then, was there any mistake to entitle the plaintiff to
have this agreement set aside ? The only mistake was,
that 2500/. was mentioned as the purchase-money instead
of 5007. This cannot entitle the plaintiff to relief in this
Court The plaintiff is not entitled to relief in equity ;
he does not seek specific performance. He does not ask
for 2500/.; but the plaintiff asks the Court to declare
that he has not entered into any agreement whatever.
(a) 6 Yea. 328.
(b) 7Ve«.211.
(o) 2 Dr. k W. 325.
{d) Ibid. 232.
(e) 1 Y. & Coll. (Ex.) 650.
(/) 3 De G. M. k G. 785.
(g) Craig, k P. 57.
{h) 0 De G. M. & G. 33.
250
1803.
Trice
V.
Lbt.
Argument,
OASES IN CHANCERY.
The plaintiff's case is, that the erroneous insertion of a
sum is to make an agreement void, though the defendant
does not seek to profit bj the mistake. Upon the terms
of the agreement the plaintiff reserved to himself the
right either to buy the fee or not. But upon a contract
to purchase an agreement for a lease, which was this
agreement, there is no implied condition that the lessor
shall make a good title : Kintrea v. Persten (a). The
plaintiff really purchased the benefit of the defendant's
agreement. On that point the agreement is quite clear.
Mr. Malini in reply.
The defendant is attempting to force on the plaintiff a
lease for five years at a rack-rent, at a premium of 500/.
The defendant brought Blake to meet the plaintiff, and
thereby gave him notice of the plaintiff^s intention to buy
the freehold. No doubt, the contract ultimately signed
was originally prepared with a view of selling the lease ;
but the defendant, finding a difficulty in so selling,
changed his plan and advertised the freehold for sale*
As to the difference between the sums of 2500Z. and 500il,
it was a simple question of apportionment between Ley
and Blake, with which the plaintiff had nothing to do.
The letter of the plaintiff to Cotton of the 3rd August
concluded the negotiation, and the agreement of the 6th
August was merely to put that letter into formal terms.
There was no intention of entering into a new contract
The first suggestion about a contract for 500/!. came on
the 12th October, 1861.
It was submitted, therefore, that the plaintiff was
entitled to a decree.
Judgment. The ViCE-ChANCELLOR : —
In this case the bill prays that the agreement in writing
. of the 6th August, 1861, may be declared null and void.
(a) 1 H. k N. 357.
Judgnunt.
CAS£S IN CUANCERT. 261
The alternative in the prayer, which seeks to have the isep.
written agreement reformed, seems wholly unsustainable. Przcb
At the date of the agreement it appears that the de- j^^^
fendant had no other title to the house and grounds which
were the subject of it than an agreement with a Mr.
Blake for a lease, which was to contain a covenant by
Blake to sell to the defendant, if he should desire it, the
fee simple and inheritance for the sum of 2000/. Ac-
cording to the written agreement between the plaintiff
and the defendant it is very clearly expressed that the
plaintiff agreed to pay to the defendant the sum of 2500/.
for the mere benefit of the defendant's agreement with
Blake.
But the defendant does not now insist on a right to
receive the whole 2500/., which, according to the clear
language of the agreement, ought to be paid to him. He
only demands 500/. as due to him under the agreement.
On the other hand the plaintiff says that what he agreed
to purchase from the defendant, and what the defendant
agreed to sell, was the fee simple and inheritance for the
price of 2500/. This, therefore, is a case in which both
parties seek to depart from the exact terms of the written
agreement.
For the defendant it has been argued that parol evi-
dence is not admissible in a suit to rescind a written
agreement in any case except where relief is sought
on the ground of fraud. But it is clearly established
that where relief is sought on the ground of mistake
or surprise, parol evidence is admissible to prove that
the written agreement is contrary to the real terms of
the contract, and therefore that the written agreement
ought to be rescinded.
In the case of Calverbf v. Williams (a). Lord Thurlow
held that if it were proved that one party thought he
had purchased bond Jide what the other thought he
had not sold, it was a ground to set aside the contract.
(a) 1 Yes. 211.
JudgmtnU
262 CASES IN CUAJNOERY.
IMS. And Sir Thomas Plumer^ in the case of Chwes v, Hig-
Pazcb ffinson {a), speaking of Lord Thurlow's opinion on this
Lby. pointy states also^ as the view of Sir William Grant, that
the consequence of such a mistake would be that in
reality there was no agreement, but, the parties mis-
understanding each other, the one proposing to buy one
thing, the other to sell another, a contract so framed in
mistake cannot consistently with justice be executed.
In the present case the mistake is proved as clearly
by the evidence of the defendant as by that of the
plaintiff. There is set forth in the defendant's affidavit
the contents of his own letter to the plaintiff of the
24th August, 1861, in which he says, ^^ Some lime
since my brother wrote to me for the agreement, as he
said there was a mistake in the one which your solicitors
showed, which I certainly did not remark until I heard
from my brother, where I saw you had agreed to pay me
2500/. for my interest immediately on the signing the
agreement, instead of 600/. ; so I sent it up to be altered."
It therefore appears that the defendant himself admitted
that there had been a mistake in the written agreement
On the part of the plaintiff the evidence proves that
the wrttten agreement contains a mistake as to the
subject matter of the contract By the plaintiff's letter
of the 3rd August he distinctly offered to buy the
freehold and inheritance for the sum of 2500/1 The
meeting of the 6th August, at which the written con-
tract was signed, took place on the acceptance of this
offer. There is no evidence on either side of any treaty
or offer by the defendant to sell to the plaintiff for 500/.
the benefit of his agreement with Blake. Through the
whole negotiation the treaty was for the purchase and sale
of the freehold and fee simple. The advertisement by die
defendant's agent for the sale of the property described
it as freehold. This, therefore, is a case in which the
mistake in the written contract is proved by irrefragable
(a) 1 V. &: B. 524.
CAS£S IN CHANCfiRT. 25:i
eyidence. By this mistake the contract is vitiated and t^ggg>
ought to be set aside* All the argaments for the de- Prick
fendants founded on cases where the bill prayed for j^^^^
specific performance, are wholly inapplicable to the ques- j^Z^
tion in this cause.
In the case of MaHin v. Pifcroft{a) there was a com-
plete agreement in writing for granting a lease for a term
certain at a certain rent, and with certain covenants.
The decision of the Court of Appeal proceeded on the
ground that an agreement by parol to pay 200/. as a
premium for such a lease was no ground for refusing
specific performance of the written agreement for the
lease, where the plaintiff submitted by his bill to pay
the 200/. That case introduced no new principle as to
the admissibility of parol evidence, and it has no applica-
tion to the jurisdiction of this Court to set aside an
agreement on the ground of mistake, or fraud, or sur-
prise. To sanction the right to set aside an agreement
on any of those grounds parol evidence is in most cases
essential. But where specific performance is asked the
Court has a discretion which is not permitted where it is
called upon to set aside an instrument on the ground of
mistake, or fraud, or surprise.
As the plaintiff has in this case proved by unques-
tionable evidence that there is a mistake in essential
parts of the written agreement, he is entitled to a
decree to have it set aside. It is necessary that the
decree should also deal with the judgment which, under
the authority of this Court, was given by the plaintiff
in the action at law. It is needless to inquire whether
the plaintiff could or could not have sustained his
equitable plea in the action at law. As the jurisdic-
tion upon the equitable question was properly transferred
to this Court, and the agreement is here set aside, the
proper course seems to be to direct that satisfaction be
entered on the judgment^ and that the defendant pay to
(a) 2Be6. M.&G.785.
254
1863.
JudgjMnt,
CASES IN CHANCERY.
the plaintiff his costs of this suit and of the motion, eo
far as the costs at law have not been already disposed of
by the court of law. The first part of the decree must
declare that the memorandum of agreement of 6th
August, 1861, is not valid and binding, and ought to be
set aside : and decree the same accordingly.
1862.
Dec. 0.
Whore the
draft of a pro-
posed settie-
ment in con-
templation of
the marriage
of an infant
ward of Court
containing a
CO? enant to
settle after-
acquired
property, but
no provision
as to a second
marriage, was
approved by
the intended
husband but
never exe-
cuted, though
a post-nuptial
settlement in
differentterms
wss exe-
cuted,
the Court
varied the
latter settle-
ment by
adding
the covenant
as to after-
aeqnired
property.
Be HOARE'S TRUSTS.
TRUSTEE RELIEF ACTS.
JjY an order made on the application of Sir J. H.
Lethbridge, the dividends of certain property bequeathed
to his children were ordered to be paid to him for their
maintenance and education during their minorities, or
until further order.
This order was relied on as constituting the children
wards of Court
The share in the trust funds belonging to Julia, one of
the infant daughters, consisted of 2159/. 18^. 3d. Bank
Annuities and a small sum of cash.
On the 28th January, 1860, Major H. Walker, who
was about to marry Miss Julia Lethbridge, at the request
of Sir John Lethbridge wrote to his solicitors begging
that they would make arrangements for settling the
money belonging to the lady conjointly on her and himself.
On the 2 1st February, 1860, a draft settlement containing
the following covenant for the settlement of the lady's
subsequently-acquired property was sent to Major
Walker : — And it is hereby agreed and declared that if
CASES IN CHANCERY. 2fi5
the said Julia Decima Lethbridge now is^ and if after the IB^-
said intended coyerture she or the said Hercules Walker Be Hoarb's
in her right shall become seised, possessed, or entitled to ^bubts.
Trustsb
any real or personal estate of the . value of 200/. or rbubf acts
upwards for any estate or interest whatsoever," except statement.
jewels, &c., which it was thereby agreed and declared
should belong to the said Julia D. Lethbridge for her
separate use, '^then and in every such case the said
Hercules Walker and Julia Decima Lethbridge, and all
other necessary parties, shall at the costs of the trust
premises, as soon as circumstances will permit, and to the
satisfaction of the trustees or trustee hereof, convey,
assign, and assure the said real and personal property to,
or otherwise cause the same to be invested in the said
trustees or trustee hereof,*' upon the trusts therein
declared.
On the 9th March, 1860, Major Walker returned the
draft without having raised any objection. The marriage
was solemnised from the house of Sir J. Lethbridge on
the 15th March, 1860, with the consent of Sir J. Leth-
bridge, the young lady being then eighteen years of age,
but no settlement was executed on that occasion. Shortly
afterwards Major Walker requested the trustees to trans-
fer the fnnds into his wife's name, but they refused on
the ground that Sir J. Lethbridge had consented to the
marriage on the faith of the settlement which had been
approved. In the May subsequent the trustees paid the
ftmd into court, under the provisions of the Trust Belief
Act
On the 7th February, 1861, a post-nuptial settlement
of the sum of 2159/. 18^. Sd. stock was executed by
Major Walker. It contained the ordinary provisions for
the settlement of personalty on marriage, but made no
provision for the children of Mrs. Walker by any future
husband; neither did it contain a covenant by Major
Walker to seitle his wife's after-acquired property.
VOL. IT. 8
256 CASES IN CHANCERY.
1663. Major and Mrs. Walker and the trustees then presented
'R6 Hoard's & petition, praying for payment out of court to the
TiitTSTs. trustees of the above sum of stock,
RBusr Acts. Upon that petition coming on, on the Ist March, 1861,
MtatttMnt *^ order was made directing the chief clerk to inquire
whether any and what settlement of the fortune of the
infant had been made, and if so, whether according to any
and what antenuptial agreement for a settlement, and
whether any and what further or other settlement onght
to be made.
On the 10th July, 1862, the chief clerk certified that
the post-nuptial settlement of the 7th February, 1861,
had been executed by Major Walker and the trustees,
which comprised the fund in court, and the other property
of the lady, which was reversionary ; that there had been
no ante-nuptial agreement for a settlement; that Mrs.
Walker was entitled to certain legacies, and to a sum of
money as one of the next of kin of a lady deceased ; and
that '^ a further settlement ought to be made of the pro*
perty comprised in the settlement of the 7th February,
186 1, and of all other the real and personal property of
or to which Mrs. Walker, at the time of her marriage,
was seised, possessed, or entitled, and of any property,
either real or personal, of which she, or Major Walker in
her right, might, at any time during coverture, become
seised, possessed, or entitled, of the value of 200L or
upwards, and that such settlement should include therein
the children of Mrs. Walker by any future husband, as
well as the children of the existing marriage, and to be
in such form as should be approved by the Court*'
Sir John Lethbridge, who had liberty to attend t&e
proceedings in chambers, now moved to vary the certifi*
cate, by striking out the words, " there was not any ante*
nuptial agreement for a settlement," and substitnting)
** there was an ante*nuptial agreement for settling all the
property of the said Julia Decima Walker. '*'
Major Walker and his wife also moved to vary Ae
GASES IN CHANCERY. 267
certificate, by striking out that part of tbe certificate 2^^
which found that a further settlement ought to be made it# Hoari'b
TausTB.
of the wife's property, and substituting for those words Tn^gTii
that no further settlement ought U) be made thereof. BiubfActs.
Mr. Craiff and Mr. Hoare appeared for the trustees.
Mr. Malins and Mr. Piggotty for Major Walker, sub-
mitted that there had been no ante-nuptial agreement on
the part of the husband to execute any settlement, and
therefore, to that extent, the certificate was wrong. A
post-nuptial settlement executed in the absence of any
ante-nuptial agreement would be voluntary, and therefore
void against creditors. In Warden r. Jones (a), affirmed
on appeal (ft), it was held that, where even there had
been a parol agreement for a settlement, a settlement of
the wife's property in pursuance of such agreement was
voluntary, and void against the husband's creditors.
There was a distinction between cases where the
money the property of the wife was in court to the
credit of the infant before the marriage, and those cases
where it was paid in after the marriage, as here : where
the money is in court the infant remains under the care
of this Court even after she attains twenty-one : Austen
V. Habey (c).
In the absence of any agreement to the contrary the
ultimate trust ought to be in favour of the husband:
Carter v. Taggart (d) overruling the decision of Vice-
Chancellor Parker (e).
Mr. Bacon and Mr. Springall Thompson for Sir J. H.
Lethbridge.
It was quite clear this lady was a ward of court : Re
Hodges Settlement (/), Ex parte Starhie (y), and the fact
(a) 23 Bear. 487. {e) 5 De G. fc 8. 40; see alsa
(2r) 2 De 6. & J. 76. Gent v. Harris, 10 Hare, 383.
{e) 2 8. & S. 123, note. (/) 3 K. & J. 213.
[d) I Be G. M. k G. 286. (^) 3 Sim. 389*
8 2
Argument.
258
CASES IN CHANCERY.
1863. that'her father was living did not interfere with the juris»
Be HoARB's diction of the Court : Butler v. Freeman (a). The filing
BUSTS. ^£ ^ i^jjj ^^ behalf of an infant is enough to make the
Trustbb
RblibbActs. infant a ward of court; because the Court would then
Argument. ^^ ^^^^ ^ proper settlement was made.
Suppose even that no agreement had in fact been
entered into, still the Court would insist that the husband
should execute a proper settlement: Martin v. Foster{b):
but a proper settlement would necessitate a provision for
settling the after-acquired property of the wife, and a
provision for the children of a second marriage.
Judgment. The ViCE-ChANCELLOR :—
As to the provision in the case of a second marriagei I
do not think it can be maintained. ' The marriage was
contracted by the husband on the faith of the draft agree-
ment, and by that he is bound, but no further.
This case comes within the principle laid down in
Lonff V. Lo7ig{c)y by Sir John Leach, and in Augten v.
Hahey by Lord Eldon, and upon that principle the Court
is bound to secure the interest of this lady.
In Long v. Long the Court went further than it is
necessary to go in this case, because in this case the
marriage having taken place on the faith of the settle-
ment which was prepared in draft and approved by the
intended husband, it is not necessary that the Court should
require any provision to be added to the settlement as
to the children of a future marriage. In this respect,
therefore, the settlement executed will not be varied.
The order, therefore, will be made on the motion to vaiy
the chief clerk's certificate.
The chief clerk was right in finding that there was no
agreement for a settlement, because the marriage took
place after the draft settlement had been shown to Ae
intended husband, and he raised no objection to It.
(a) Ambler, 301. (») 7 De G. M. & 6. 98. (0) 2 S. & & 119.
CASES IN CHANCERY. 269
Though, therefore, there is enough to bind him in the 18<KI-
Tiew of this Court to execute a settlement and to induce Be Hoabb's
the Court to order him to do so, yet it would not be Tbubtb.
necessary to execute the settlement. BbubpAotb.
The costs of the trustee will come out of the funds, judam§nt.
but no other order as to costs.
Ordered, — That the chief clerk's certificate finding that
there was no ante-nuptial settlement be varied and read
as if the sud certificate did not contain that finding ; and
on the motion of the petitioners to vary the certificate no
order ; and on the petition on further consideration this
Court doth order that a covenant be endorsed on the
settlement as follows: — The within-named Hercules
Walker, for himself, his heirs, executors, and assigns*
doth hereby covenant, promise, and agree with the said
W. Walker (the trustees) that if the said J. D. Walker
was at any time of her marriage, or the said H. Walker
in her right shall have become seized, possessed of, or
entitled to any real or personal property of the value of
200/. or upwards, or for any estate or interest whatever,
except jewels, trinkets, ornaments, plate, pictures, books,
prints, and other articles of a like nature, which it is
hereby declared shall belong to the said J. D. Walker for
her separate use, then and in every such case the said H.
Walker and J. D. his wife, and all other necessary parties,
if any, shall at the cost of within mentioned trust funds, as
soon as circumstances will permit, and to the satisfaction
of trustees or trustee, convey, assign, and assure the
said real or personal property, or cause the same to be
vested in the trustees or trustee of within-mentioned trust
funds upon the trusts within declared of the matters
within assigned. And it is ordered the covenant so to
be endorsed be executed by the said Hercules Walker.
Tax and pay costs of respondent out of fund. No order as
to costs of petitioner or Sir J. H. Lethbridge ; and transfer
residue of fund to trustees on trusts of indenture of
settlement— Beg. Lib. A, 2464, 9 Dec, 1862.
260 CASES IN CHANCERY.
1803.
-v~ BOXSER V. BRADSHAW.
Jan. 16. ^
Where a X HE bill In this case was instituted by the next friend
employed by of an infant, the grandson and heir-at*law of one John
friei^Tn Bonser, who, in 1854 and at the time of his death, was
establishing an entitled to the equity of redemption in certain real estate
to certain land, consisting of houses and land in the county of Leicester,
baring at- against the devisees of the same property under the will
^XSti ^^ J^^° Bonser, dated the 7th August, 1850, and which
under the had been proved in the Archdeaconry Court at Leicester.
23 & 24 Vic.
c. 127. s. 28, The bill impeached the will, and prayed that it might
petition so'^ be set aside; that the devisees thereunder might be
'^^^ ^^ *^* directed to convey the real estate to the plaintiff; or, if
mained unpaid neoessary, that an issue of devisavit vel non might be
a charge on
the land directed.
recovered, j^^ March, 1858, the plaintiff moved for an injunction
and receiver, and also for an issue. His Honour refused
. the motion for the injunction, but made aii order for
an issue devisavit vel non. The issue was subsequently
tried at Leicester, and, the jury having found a verdict
for the plaintiff, the application for a receiver and for
an injunction was renewed and the order made. Some
portions of the estate were subsequently sold to a railway
company, on which occasion the Court declared that
John Bonser's heir-at-law was entitled to the property,
and that the devisees were trustees for him. The Court
also ordered that the defendant, who had set up the
alleged will, should pay all the costs of the proceedings.
The purchase-money for the land which had been sold
to the company, amounting to 266/., was paid into court
The taxed costs incurred in prosecuting the infant
plaintiff's rights In the suit and action amounted to the
sum of 4921, a large part of which was the monej paid
Staiementm
CA0ES IN CHANCERY. 361
out of pocket by the solicitor employed by the next 1868.
fiiend. The defendant, having become insolvent^ a broitk
petition was, in December, 1860, presented on behalf of buj^^shaw.
fhe infant plaintiff and his next friend praying for the
payment out of court of the sum of 266/., and for pay-
ment, so far as that sum would extend, of the costs due
to the pluntiff *s solicitor. The petition also prayed that
the residue of the costs of the solicitor might be raised
and paid out of the real estate recovered, or that the
same might be declared to be a charge on the real estate
under the 28th section of the Attorneys, Solicitors, &c..
Act of 1860 (23 & 24 Vict. c. 127).
On the 21st December, 1860, the Court ordered payment
to the solicitor of the fund in court in part payment of
his costs, but refused to declare that the solicitor was
entitled to a charge on the estate for the residue of his
costs, on the ground that the Act of 1860 had no applica-
tion to the case of an infant, but that it applied only to
cases where the parties were sui Juris. The infant
plainti£F having attained the age of twenty-one, a petition
was presented on behalf of the solicitor praying that
the residue of the costs, charges, and expenses incurred
by him in recovering the estate might be declared to be
a charge on the estate, and might be raised and paid out
of it.
Mr. MdHm and Mr. R, W, E. Forster appeared on the
petition.
The Viob-Chancellob made an order directing the Judgwmt
costs, charges, and expenses to be taxed, and declaring
that the amount certified by the taxing master should be
a charge on the estate, to be raised by a sale of the same.
262 OASGS IN CHANCEBY.
1863. SLEE t;. THE CORPORATION OF
BRADFORD.
Jan. 80, 81.
Feb. 10. ^
The owner of J. HE plaintiiFs for several years prior to the filing of the
desirous'of bill had been entitled to a piece of land in Bradford,
premidM^eu^^^ abutting on a street called Chapel Lane, on which he had
mitted tiie ^ manufactory and warehouses, subject to an agreement
a committee, for a lease. For two years and upwards the plaintiffs
Town Council, carried on the business of leather merchants, tanners, and
BoM^o/*^*^ millboard makers in partnership, and occupied and used
Health, dele- the said warehouse and premises for the purposes of their
powers, and, business, until they were pulled down under the circum-
havingbeen Btances detailed in this case. Under their partnership
*^uuS^?' agreement it was one of the terms that the manufacturing
the factory, warehouses and premises should be held by the plaintiff's
to rebuiid^t partnership as lessees under the plaintiff Henry Slee for
wX^iMi!^ a term of twentyK)ne years from the 24th March, 1861,
The Town at a rent of 160Z. per annum, subject to the usual
Coancil, under
the d5th sec- covenants.
lS^i G^?em- ^^ the year 1850 a local Act, 13 & 14 Vic c. Ixxix.,
^^* "^^ ti ^*® passed for the better regulation and management of
to buildings the borough of Bradford. It incorporated portions of the
haffngw^' PubUc Health Act, 1848 (11 & 12 Vic. c, 63), and
plaintiff to set s^'^^^al provisions of the Towns Improvement Clauses
back his pre- Act, 1847 (10 & 1 1 Vic. c. 34), and enacted, sec. 16th, that
mises, the
Court re- the town council should be the local board of health, and,
b/fajunctidn sec. 22, that copies of bye-kws should be evidence.
?^°Li?!*I?'" Sec. 11 was as follows ;—
ing with the
erection of the And be it enacted that the council may appoint out of
ing to the their own body, from time to time, such and so many
pfanir*** committees, and consisting of such number of persons as
they shall think fit, for all or any of the purposes of this
Act, which, in the discretion of such council, would be
better regulated and managed by means of such conunit-
CASES IN CHANCEKV. 263
tees, and may fix the quorum of such committees : Pro- ^^^^'
Tided always that the acts of every such committee shall, Sleb
in case the council so order, but not otherwise, be sub- the Coe*
mitted to the council for their approval ; but that no ex- ^2ea»med'
penditure or payment, or contract to expend or pay any
sum of money, made by such committee shall be lawful
or valid, when such sum shall exceed the sum of 100/.,
unless such committee shall have been authorised by the
council to make such expenditure, payment, or contract,
or unless, if not so authorised, such expenditure, payment,
or. contract shall, after the same has been made, be
approved of by the council. Sec. 13. And be it enacted
that every committee so appointed may meet from time to
time, and may adjourn from place to place as they think
proper, for carrying into effect the purposes of their
appointment ; but no business shall be transacted at any
meeting of the committee, unless the quorum of members
(if any) fixed by the council, and if no quorum be fixed
three members, be present ; and at all meetings of the
committee one of the members present shall be chosen
chairman, and all questions shall be determined by a
majority of the votes of the members present, and in case
of an equal division of votes the chairman shall have a
casting vote in addition to his vote as a member of the
committee. Sec. 14 : And be it enacted that the treasurer
and town clerk for the time being of the said borough
shall be the treasurer and clerk for the purposes of this
Act.
By sec. 59 it was ifiter alia enacted that the word
'^ house or houses '' shall include any messuage or
dwelling-house, tenement, warehouse, factory, mill, dye-
house, manufactory^ building, or other enclosure, and
every part thereof, &c. &c.
The town council in pursuance of their powers under
the Local Government Act made bye -laws, which were
on the 20th October, 1860, confirmed by the Secretary
of State for the Home Department.
264 CASES IN CHANCERY.
WM- The 20th bye-law was as follows :—
Slbb Every person who shall intend to erect any new
Thb^Coe- building shall give a fortnight's notice to the council of
poRAiioN ov auch intention by writing, delivered to the surveyor, or
— left at hi^ office, and shall at the same time leave or cause
a emen . ^^ ^^ j^^^ ^^ ^j^^ ^^-^ office plans and sections of every
floor of such intended new building, drawn to a scale of
one inch to every eight feet, showing the position, form,
and dimensions of the several parts of such building, and
of the [water-closet, privy, cesspool, ashpit, well, and all
other appurtenances, and such plans and sections shall be
accompanied by a description of the intended mode of
drainage and means of ventilation of drains, and the
materials of which the drains are to made, also of the
construction and dimensions of the chimneys and flues,
and means of water supply. A plan shall be left at the
same time showing the position of the buildings and
appurtenances of the properties immediately adjoining, the
width and level of the street, the level of the lowest floor
of the intended building, and of the yard or ground
belonging thereto. The plan shall show also the proposed
lines of house drainage, and their size, depth, and incli-
nation.
On the 18th March, 1862, the council made certain
bye-laws numbered respectively 6, 22, 24, in lieu of
others numbered similarly, and such altered bye-laws
were confirmed on the 14th April, 1862, and the said
bye-law numbered 24 was as follows : —
The council shall by their order approve or disapprove
proposed new works or buildings within the time severally
specified herein for the deposit of notices thereof. If
the owner or person intending to construct any new
street or erect any new building fail to give the notices
hereiii required, or proceed to the execution of any of
the works before the expiration of such notices^ without
such approval of the ceuncil as aforesaid, or if, contrary
CASES IN CHANCERY. 2G3
to the provisions herein contuned, any owner or person is«3.
shall construct or cause to be constructed any worksj or ^blbT
do any act, or omit to do any act or comply with any j^^j^^^^^
requirement of the council or their surveyor acting under toratioh of
the authority of the foregoing bye-laws, or make any — ^
alteration in any works after they have been completed, Staitmnu.
whether in new or or existing buildings, he shall be liable
for each offence to a penalty not exceeding 5/., and he shall
pay a further sum not exceeding 40«. for each and every
day which such works shall continue or remain contrary to
the said provisions, and the council may, if they shall
think fit| cause such works to be removed, altered^ pulled
down, or otherwise dealt with as the case may require,
and the expense incurred by them in so doing shall be
repaid by the offender, and be recoverable from him in a
summary nuinner as provided by the Public Health Act,
1848.
The bill alleged (par. 6) that ^'shortly before the
month of May, 1862, the plaintiffs, being desirous of
effecting extensive improvements in their said manufaOf-
tory and premises, determined to pull down and rebuild
on the same site their said buildings, in [case such re-
building should be permitted by the defendants* Council,
and for the purpose of ascertaining whether such rebuild-
ing would be so permitted, and also in compliance with
the 20th bye-law, which was and still is in force, they
caused to be prepared by Messrs. Andrew [& Delaunay,
architects, certain plans, sections, and particulars of the
said proposed new buildings, such as were required by the
said 20th bye-law ; and they caused such notice in writing
to the defendant's council of their said intention to erect
such new buildings as was required by the said 20th bye-
law to be delivered to the surveyor of the said council,
or left at his office, as required by the said bye-law,"
together with the said plans ; " and they, the said plain-
tiffs, in all respects complied with the said bye-IaWr"
266 CASES IN CHANCERY.
1808. Paragraph 7 of the bill charged that the plaintiffis'
8LBB notice^ plans, sections, and particulars were laid before
TH«*CoH- *^® Building and Improvement Committee of the said
joBATioK o» council (which committee had been duly appointed
— — pursuant to the said 11th section of the Bradford Im-
provement Act, 1850, and had cognizance of the matter),
and the said committee by their resolution duly and
finally approved of the same ; and the plaintiffs chaige
that such approval and the resolution whereby the same
was given were duly entered on and appear by the
minutes of the said council and of the committee, but
the plaintiffs are ignorant of the precise date and terms
of the said resolution. The plaintiffs charge that such
approval was the approval of the defendants* conncil in
pursuance of the said 24th altered bye-law, and was a
due exercise of the jurisdiction vested in that behalf in
the defendants by the said acts and bye-laws, and became,
and was, and is irrevocably binding on the defendants.
By order of the committee the surveyor of the town
council sent to the plaintiff's architect the following
letter : —
" Borough Surveyor's Office,
" Bradford, May 14, 1862.
" Sir, — I beg to inform you that your plans, sections,
and particulars of a currier's warehouse and offices
proposed to be erected in Chapel Lane for Mr. Henry
Slee, have been laid before the Building and Improve-
ment Committee of the council, and that said committee
has approved of the same.
" I am. Sir,
" Your obedient servant
"Robert Ltnam,
" For Borough Surveyor.
** To Messrs. Andrews & Delaunay, Architects.
" Note. — The ratification of the approval of any pkns
CASES ly CHANCEIIT. 267
and particulars by the Building and Improyement Com- 1803.
mittee refers only to such matters and such parts of the slbb
said plans and particulars as are required to be set forth, thb^Coh-
shown, or described thereon, in accordance with the bye- 'obatiok op
, Beaopobs.
laws especially made for the regulation of the laying out
and forming of new streets, ^nd the erection of new * *"*" '
buildings. And it must be distinctly understood that
such approval does not include or give the consent of the
committee or council to any other part of the plans or
sections deposited, nor for the doing of any work whatso-
eyer other than that set forth, described, and required by
the aboye-mentioned bye-laws. It will, therefore, be
understood that the approval of the committee gives no
authority whatsoever for the making of any projection on
the front of any building into any street beyond the
proper line of such street, nor for the taking up of any
causeway or roadway for the purposes of the erection of
such building, nor for the making of any excavations in
any street or road, nor for the making of any communica-
tion or connection with any public or private pipe, drain,
or sewer, nor of the mode or manner in which any other
connection with any public or private sewer shall be
made, nor for the placing of any building material on
any part of any street or road, nor (with reference to
plans of buildings) of any lines or widths, of causeways
or streets, nor of the height of any new chimney pro-
posed to be built in connection with any mill, manufiic-
tory, or business premises whatsoever, although any or
all of such matters may be fully set forth, shown, or
described in the plans, sections, and notices deposited
with and approved by the committee ; but in every case in
which such work and alteration, interference, &c., is
required to be done, separate and specific notice thereof
must be given to the borough surveyor, and the consent
and permission of the committee or council obtained for
every sach work as the case may require."
Staftmmt.
268 CASES IN CHANCERY.
W«^ The 8th paragraph of the bill alleged that the plaintiffs,
Slbb upon receiving the said notice of the approval by the
Thb (3or. ^^ council of the said plans, sections, and particulars,
'BRAl'roaS.' ^®^y^°g thereon, and in the full confidence that the
defendants would abide by and were bound by the same,
began to pull down their said buildings, which, up to
that time, had not been disturbed, and pulled down the
same in ignorance that the defendants had any intention
of interfering with the rebuilding thereof according to
such plans, sections, and particulars, and without re-
ceiving any intimation from the defendants or their
council or committee, or any one on their behalf of any
such intention.
The bill alleged that on the 24th June, and so soon as
the plaintiffs' buildings had been pulled down, the town
council passed some resolution of which the plaintiff had
no copy, but which was to the same effect as the
following resolution passed next day : —
'' Resolved that, the building or buildings situate in and
fironting to a street called Chapel Lane, in the borough
of Bradford, recentiy occupied by Mr. Henry Slee as a
tanning warehouse or otherwise, and the appurtenances
thereto, having been taken down in order to be rebuilt
or altered, it be and is hereby ordered and prescribed
that any house or building to be hereafter built on the
site thereof, or of some part thereof, shall be erected on
the line shown in the plan hereto annexed, the said pre-
scribed line being marked on the said plan which is now
produced and signed by the chairman, and thereon ,
coloured red, and called thereon 'Line of front of
buildings when rebuilt or altered,' and which line shall
be the line of the outer or front wall towards Chapel
Lane aforesaid of any house or building to be erected as
aforesaid. That the notice to Mr. Henry Slee now read
be approved, and that the corporate common seal be
affixed thereto."
CASES IN CHANCERY. 260
On the 0Mne occasion the chairman of the committee 1S68.
signed the plan, which was to the same effect as the slsb
notice of the 27th June, 1862, which, with a copy of the trs^'coh.
resolution signed by Mr. Light then deputy mayor, »^ratioii op
whereby the plaintiffs were required to comply with the
requisition of the said resolution as to the line of build- ^ ''"''* '
ings, and further giving notice that the town council,
under the powers of the Lands Clauses Consolidation
Act, 1845, require to purchase a part of the plaintiffs'
premises specified in a schedule for the purpose of im-
proving Chapel Lane, and requiring the plaintiffs to
state the particulars of their estate and interest therein.
By the plan annexed to the notice the plaintiffs were
reqtured to set back the front of their proposed building
along the whole of the frontage at a distance of twelve
feet three inches at the nearest and fifteen feet two inches
at the furthest from the frontage, so as to cut off an area
of 592^ square yards of the plaintiffs' land, which they
had intended to cover with their new buildings as shown
by the plans. The plaintiffs charged that the required
alteration in the line of frontage, if permitted to be
insisted on, would be wholly destructive of their plans
for building, and would render the residue of their piece
of land insufficient, unsuitable, and useless for the build-
ings for the purposes of their trade.
On the 2nd July the town clerk sent to the plaintiffs'
solicitors the following letter:-^
« Town Clerk's Office, Bradford, Yorkshire,
« 2nd July, 1862.
" Dear Sirs*
" Improvement of Chapel Lane.
''I beg to hand you copy of a resolution of the
General Improvement Committee passed on the 1st
instant I also beg to give you notice that Mr. Slee may
Statmnent,
370 . CASES IN CHANCEHY.
18^ proceed at once to build to the line of frontage prescribed
Slbb in the notice dated tbe 27th ultimo^ and to make an vanity
Tbb Cob- ^P<^h9 o^ cellar under the proposed causeway not extending
'bbadfobd' "^^'® ^^^^ ®^^ feet beyond the prescribed line of frontage.
In case you should recommend Mr. Slee to submit a
fresh .plan to avoid the possibility of any question as to
his incurring penalties by building without an approved
plan^ I will convene a special meeting to consider it^ in
order to avoid delay and to facilitate your client's pro-
ceeding with the erection of his buildings.
'* I am^ dear Sir^
" Yours truly,
''Joseph Ratveb,
" Town Clerk.
" Messieurs Lees & Senior,
" Solicitors, Bradford."
The plaintiffs charge that by the said letter the defen-
dants admitted, as the fact is, that by their said proceedings
they were and are attempting to revoke and annul their
aforesaid approval of the plaintiffs' said plans, which the
plaintiffs charge they had and have no power to do.
The resolution of the 1st day of July, 1862, of which
a copy was enclosed in the said last-mentioned letter was
as follows: —
" Resolved — That the suggestion of the committee to
the Building and Improvement Committee with reference
to the prescribed line of front of buildings to be erected
by Mr. Henry Slee, having been adopted by such com-
mittee, this committe hereby adopts such line as the
permanent line of frontage on the south side of Chapel
Lane, and that the causeway on the south side of Chapel
Lane as the same shall be from time to time improved
shall not be less than six feet"
Siaitmtnt,
CASKS IN CHANCERY. 271
The plaintiffs, believing ^hat they were entitled to re- iws.
quire the defendants to take the whole of their premises, slbs
caused a notice to be served on them to that effect, .j.^^ q^^^
whereby they required 1000/. for the leasehold interest, 'gj^^^p^J^^o'
60742. 19s. for compensation for loss of trade, injury or
damage by removal, 916/. lOs. for loss in collection of
book debts, 1002/. Ss. for loss as to stock of leather, &c.,
550/. for loss of fixtures, plant, &c. Henry Slee (the
lessor) also claimed 5280/. for his interest therein. On
the 21st July, 1862, the plaintiffs also gave notice that
they required to have their claims settled by arbitration.
They also by their solicitor expressed their willingness to
allow an inspection of their books.
A correspondence between the plaintiffs' solicitors and
the town clerk ensued, and on the 8th August, 1862,
Mr. Rayner sent the following letter to the plaintiffs'
solicitors, and on the same day withdrew their notice to
take the property under the Lands Clauses Consolidation
Act: —
" Town Clerk's OflSce, Bradford,
" 8th August, 1862.
" Dear Sirs,
" The Corporation and Slee.
" I have submitted your letter of the 5th instant to a
special meeting of the Building and Improvement Commit-
tee held this afternoon. The committee directed a fresh
notice to your client, which has been served on Messrs.
Lees & Senior in accordance with your direction as to
future notices* The charges of injustice contained in
your letter must have been made either in ignorance of
the facts or without having considered the relative position
of the corporation and parties proposing to build. I think
it clear beyond doubt that, as between the council, or their
Building and Improvement Committee, and the burgesses,
the former are not justified, for obvious reasons, in inti-
VOL. IV. T
27» CASES IN CHANCERY.
1868. mating to parties intending to build that the powers of
Slbs the 35th section will be put in force when the old build-
Thb^'cor. ^^S^ ^^ taken down ; but a practice prevailed when I
YOKATzoir OF ^^^3 appolutcd to tWs officcj which still exists^ of giving
express notice, in approving of plans of proposed new
buildings, that the same must not be considered an
approval of the line or width of streets* I understand
this notice was given by the borough surveyor to your
clients' architects, but independently of this I hope you
will see fit, after the explanation I have given, to with*
draw the charge of injustice contained in your letter. If
any reference to arbitration should take place, I shall be
glad, when the proper time arrives, to communicate with
you as to whether it should be held in London, and also
as to the propriety or necessity for employing counsel
upon it. At present I consider it altogether premature
to go into such matters.
"The Corporation and Slee & Son.— I shall have
occasion to give a notice to Messrs. Slee & Son, which I
will serve upon Messrs. Lees & Senior to-morrow.
^ I am, dear Sirs,
" Yours faithfuUy,
'^ Joseph Baynek,
« Town Clerk.'*
Upon receiving the notices of the 8th and 9th August,
1862, the plaintiff^s solicitor retracted the claim for com-
pensation, and gave notice that they would serve the cor-
poration with formal notice to appoint an arbitrator. In
reply Mr. Bayner denied that the corporation were
bound to take the property. After some negotiation the
plaintiff's solicitor served the notice to appoint an arbi-
trator, and appointed Mr. Clifton to act on their behalf.
In answer to this the defendants served a counter^notice
offering compensation, and declining to take the premises.
Some further correspondence ensued, but on the 6th
CASES IN CHANCERY. 273
January, 1863, the defendants served the following IMS-
notices on the plaintiffs : — blw*
V,
Tub Coa-
" To Mr. Henry Slee. roRAxioir of
** This is to give you notice that the mayor, aldermen,
&C., acting as the local board of health in and for the
district of the said borough, in pursuance of the power
giyen to them by the Bradford Improyement Act, 1850,
and the Acts therewith incorporated, the Local Govern-
ment Act, 1858, and the Lands Clauses Consolidation
Act, 1845, intend, immediately after the expiration of ten
days from the giving to you of this notice, to cause a
jury to be summoned for the purpose of their assessing
and determining the sum of money to be paid by the
8ud corporation for the damages sustained or to be
sustained by you in consequence of the building in
Chapel Lane within the said borough, and belonging
to you, being set back in accordance with the notices
of the S4ud corporation dated the 27th day of June
and the 8th day of August, served upon you on the
28th day of June and the 8th day of August last And
this is to give you further notice that the said corporation
are willing to pay and hereby tender to you the sum of
3502L sterling for the loss or damage sustained or to be
sustained by you in consequence of the said house or
building being set back in manner aforesaid.
"M. W. Thompson, Mayor/' (L.S.)
And-
" To Messrs. Slee.
"Take notice that under and by virtue of and in
exercise and execution of the powers and provisions ot
the Public Health Act, 1848, the Bradford Improve-
ment Act, 1850, and the Acts therewith incorporated,
T 2
Bbadford.
8tat0m§nt,
foratiox of
Bbadford.
Siatemeni*
274 CASE3 IN CHANCERY.
1868. the Local Government Act, 1858, and the Lands Clauses
Sleb Consolidation Act, 1845, the mayor, &c., of the borough
Thb^'cor- of Bradford, acting as the local board of health in and
for the borough, having required the house or building
referred to in the notice dated and served upon you on
the 9th day of August last to be erected in the line
prescribed by the resolution and notices to you the said
Henry Slee referred to in the said notice (a copy of
which, with the plan, is hereunto annexed), and the said
corporation are ready to treat for and pay compensation
for the damage sustained or to be sustained by the owners
or other persons immediately interested therein in conse-
quence of the said house or building being set back to
such prescribed line. And take further notice that the
said corporation demand from you the particulars of your
claim for compensation in respect of any loss or damage,
sustained or to be sustained by you in consequence of
the said house or building being set back as aforesaid, and
such particulars may be delivered or sent in writing to
the town clerk of Bradford at his office. And take
further notice that if for twenty-one days after the service
of this notice on you you shall fail to state the particulars
of your claim in respect of the premises, or to treat with
the said corporation in respect thereof, or if you and the
said corporation shall not agree as to the amount of com-
pensation to be paid by them for any loss or damage
sustained or to be sustained by you in consequence of the
said house or building being set back, the amount of
such compensation will be settled under the provisions of
the Lands Clauses Consolidation Act, 1845 ; and the
said corporation will take such further proceedings as
under the circumstances they are by the said Acts or
any of them empowered to take.
'' Dated this 5th day of January, 1863.
« M. W- Thompson, Mayor." (L.S.)
CASES IN CHANCERY. 275
The plaintiffs charged that the defendants intended to act 1 863.
on the said notices ; and that they were vague^ and did not slbs
determine on which of the notices the jury was to assess thk^'cor-
compensation, or whether on the footing that, exclusive of 'okatiow of
. Bbadpord.
any purchase by the defendants of the same, plaintiffs were
to retain the ownership of the property subject to a ^ *"*"'*
restriction agunst building on the same ; and that the
defendants intended to endeavour to give compensation
on the assumption that the ownership was to be in tlie
plaintifis, and to act on the footing that they were to be
deprived of all interest therein. The plaintiffs further
charged that the plaintiffs had been put to great charge
and loss, and further charged that, in case they proceeded
to erect their buildings otherwise than in accordance with
the new plans to be hereafter left at defendants' offices,
and to be approved by the committee, the defendants threat-
ened and intended to pull down the buildings so erected,
and to proceed against the plaintiffs for fines and penalties
for a large amount, increasing from day to day, under the
statutes. The plaintiffs charged they could not safely
proceed with the buildings, or permit the defendants to
proceed for the purpose of assessing compensation under
the Lands Clauses Consolidation Act, 1845.
The bill prayed as follows : —
That the defendants might be restrained from issuing
or proceeding upon any warrant to summon a jury, and
from taking any other proceeding under these notices, or
otherwise in respect of the premises, except proceedings
for purchasing, and taking, and assessing compensation by
arbitration of the whole of the plaintiffs' premises, and
from interfering with the rebuilding by the plaintiffs of
their manufactory according to the plans so approved by
the defendants, and from recovering or enforcing any fine
or penalty against the plaintiffs in respect of such re-
building, and from in any way enforcing any resolution
or order requiring the plaintiffs' buildings to be erected
276
CASESjIN CHANCERY.
Bradfobd.
Statemifit,
1063. on the prescribed building line^ or requiring the same to
8LBB ^^ erected otherwise than in conformity with the said
^coB- P^^^^* sections, and particulars so approved by the de-
poRATioN OP fendants, and also (if necessary) from permitting any such
resolution or order to remain unrescinded.
That otherwise and in case of the said defendants being
permitted to carry on their said proceedings without
purchasing the said plot of ground in front of the said
building line, they, their surroyors, agents, and workmen
might be restrained from constructing the causeway or
carriageway of Chisel Lane aforesaid over the same, and
from throwing the same into Chapel Lane aforesaid for
public use as part thereof, and from in any way depriving
or attempting to deprive the plaintiffs of the exclusive use
and ownership thereof.
That the defendants might be decreed to make compen-
sation to the plaintiffs for all losses, damages, and expenses
occasioned or to be occasioned to the plaintiffs by the
aforesaid interruption of the rebuilding of the phiintiffb*
said intended new buildings according to the said approved
2)lans, sections, and particulars, or otherwise by the de«
fendants' aforesaid proceedings.
Argument. Mr. Malim and Mr. Bagsliawe for the plaintiffs.
The town council and the committee were one tribunal,
and if so the case stood thus — ^that, having no power to
interfere with the plaintiffs' buildings so long as they were
standing, they induced him, by a promise to allow him to
rebuild them in the way he proposed, to pull them down,
so as to give them jurisdiction under the 35th section
of the Local Government Act, 1858, and then turned
. round and repudiated the arrangement which they had
entered into as to the rebuilding. It was submitted
that this was a breach of faith such as this Court would
not permit, and that the plaintiff was entitled to an in*
junction to r^stri^in the defendants from acting on these
CASES IN CHANCERT.
277
notices, And ficom preYenting ihe plaintiff firom rebuilding
his premises according to tiie approved plans.
«
Sir Hngh Cairns and Mr. Freeling for the defendanta.
The question really was whether in point of fact the
town council delegated their powers to the committee^ and
it was submitted thej did not Mr. Ljnam's letter of the
14th May, 1862, only approved of the plans of the build-
ings ; but in the note appended to such letter it was ex«
pressly stated '' that the approval of the committee gave no
authority whatsoever for the making of any projection on
the part of any building into any street beyond the proper
line of such street." Moreover the bye-laws under which
the corporation acted were made, not under the 34th
section of the Act of 1858, which contains no powers for
the particular purpose contemplated by their bye-laws
(Chapel Lane not being a " new " street), but under the
35th section, which plainly authorises the council to set
a new building back. Moreover, there was nothing here
which the Court could restrain, unless it were an award
of damages under the 34th section. The corporation
could not interfere with the plaintiffs' building.
It was submitted, therefore, that the plaintiff was not
entitled to the injunction, and the motion must be
refused.
Mr. Jfalins was heard in reply, (a) ^
ises.
8lbb
o.
Thb Cor-
PORATIOXr OF
Bradpord.
Arffument.
The Vice-chancellor;—
The plaintiffs are the owners and proprietors of a
manufactory in the town of Bradford, in which they
Judgment,
(a) The sections of the dif-
ierent Acts referred to were as
follows 2— »
Section 68, Towns Improve-
ment Clauses Act, 10 & 11 Vic.
c.34(1847). "When any house or
building any part of which pro-
jects beyond the regular line of
278
CASES IN CHANCERY.
1863.
Slbb
V.
Tbb Cor-
poration OF
Bradford.
Judgment,
oarry on the business of leather merchants in partnership.
They determined to pull down and re-erect the greater
the street, or beyond the front of
the house or building on either
side thereof, has been taken down
in order to be rebuilt or altered,
the comniifisioners may require
the same to be set backwards to
or toward the line of the street,
or the line of the adjoining houses
or buildings, in such manner as the
commissioners direct, for the im-
provement of such street, provided
always that the commissioners
shall make full compensation
to the owner of any such house
or building for any damage he
thereby sustains."
Section 34, Local Government
Act, 21 & 22 Vic. c. 98. "Every
local board may make bye-laws
with respect to the following
matters, that is to say, first, with
respect to the level, width, and
construction of new streets, and
the provisions for the sewerage
thereof; Secondly, with respect
to the structure of walls of new
buildings for securhig stability
and the prevention of fires.
Thirdly, with respect to the suffi-
ciency of the space about buildings
to secure a free circulation of air,
and with respect to the ventila-
tion of buildings. Fourthly, w ith
respect to the drainage of build-
ings ; to waterclosets, privies, ash-
pits, and cesspools in connection
with buildings ; and to the closing
of buildings or parts of buildings
unfit for human habitation; and
to prohibition of their use for
such habitation. And they may
further provide for the obser-
vance of the same by enact-
ing therein such provisions as
they think necessary as to the
giving of notices, as to the deposit
of plans and sections, by persons
intending to lay out streets or to
construct buildings ; as to inspec-
tion by the local board, and as to
the power of the local board to
remove, alter, or pull down any
work begtm or done in contra-
vention of such bye-laws, pro-
vided always that no such bye-
law shall afiect any building
erected before the date of the
constitution of the district. But
for the purposes of this Act the
re-erecting of any bnildiDg pulled
down to or below the ground
floor, or of any frame building of
which only the frame work shall
be left down to the ground floor,
or the conversion into a dwelling-
house of any building not origi-
nally constructed for human habi-
tation; or the conversion into
more than one dwelling-house of
a building originally constructed
as one dwelling-house only, shall
be considered the erection of a
new building.*'
Section 35. " When any bouse
or building has has been taken
down in order to be rebuilt or
altered, the local board may pre-
scribe the line in which any house
or building to be hereafter built
shall be erected, and the same
shall be erected in accordance
therewith, and the local board
shall pay or tender compensation
to the owner or other person im-
mediatelypnterested in such house
or building for any loss or damage
CASES IX CHANCERY.
part of thu manufactory upon an improved plan, but
before pulling it down, being aware that they must obtain sm
the approval of the plan by the Corporation of Bradford 1.^^*^
and the town council under the powers of their Act of poratiok of
Parliament, they gave formal notices in compliance with
the ActB of Parliament and the bye-lawa of the council. J^lgmtnU
The first question is whether with reference to the pull-
ing down and re-erecting buildings of this kind the bye-
laws have any application.
It has been contended on behalf of the town council
that upon the true construction of the Act of Parliament
they have no power to delegate to any committee their
authority to approve the plans of rebuilding with refer-
ence to lines of the streets, and that they have no power
to make bye-laws upon that subject, but that the power
as to bye-laws is reserved to themselves. But it appears
that the plaintiffs served their notice and delivered the
plans submitted for approval, not to any committee, but
to the council, according to the form prescribed by the
Act. The plans so deposited indicated the position in
which the front of the new building was to be rebuilt
with reference to the adjoining property. The bye-law
required that the plans and sections should not only show
the position of different parts of the building, with refer-
ence to other parts, but should also clearly indicate the
position of the new building with reference to adjoining
property, and to the line of the street. The first question
is whether that bye-law was authorised by the Act of
Parliament, but I must observe that if this interlocutory
he may sustain in consequence of 1845, is directed to be settled,
his house or building being set And all the proyisions of the said
back ; the amount of such com- last -mentioned Act relating to
pensation in case of dtspute to be the purchase of lands shall apply
settled in the same manner as to the payment made for such
compensation for land to be taken loss or damage as if it were a
under the provisions of the purchase under tach Act."
I^nds Clauses Consolidation Act,
280 GASES IN CHANCERY.
1603. application is refused the plaintiffs will be placed in a
Slbb inost unfair and inconvenient position^ for they will be
Thb*Cor- ^^*We to proceed with their new building unless they
poRATioK OP submit to the dictation of the town council The 68th
Bradford.
.— ^ section of the Act of 1847^ which is incorporated in the
*'***"'*^'' Bradford Improvement Act, 1850, provides that where
any house or building, any part of which projects beyond
the regular line of a street, or beyond the front of die
houses and buildings on either side, has been taken down
in order to be rebuilt or altered^ the commissioners may
require the same to.be set backward to or toward the line
of the street, or the line of the adjoining houses. Sudi
is the power given by the Act of 1847 ; and the Act of
1850, in the 11th sction, seems to authorise the town
council to make bye-laws with reference to that subject
The Public Health Act, 1846(a), is incorporated with the
Act of 1858, upon the construction of which the case of
the defendants has been mainly rested. The 34th and
35th sections of the Act of 1858 refer to the rebuilding
in towns of houses which have been taken down. But it
is said for the defendants that the 34th section, although
it says that bye-laws may be made upon various subjects,
does not authorise any bye-law to be made by the local
board with reference to this question. That view can-
not be maintained, because it is obvious that the object
6f the Corporation of Bradford here is to have the front
of the building removed further back, in order that the
street may be widened. The question, then, is simply as
to the width of the street, because the width of the street
must depend upon the position of the front of this house.
The very first thing upon which the local board is au-
thorised to make bye-laws by the 34th section is with
respect to the level, width, and construction of new streets,
and the provisions for the sewerage thereof, with respect
to the structure of walls of new buildings and so on, and
(a) 11 & 12 Vict. c. 63,
CASES IN CHANGERT. 281
then they may provide for the obseryaiice of this by re- 1009.
quiring notice to be given as to the deposit of plans and sm
sections by persons intending to lay out streets or to thb*Co«.
construct buildini^s. roEAxioH o»
, Bkaofokd.
The plan submitted by the plaintiffs for approvial was a
plan with reference to the construction of a building, but ^'"*" '
the latter part of the clause says that for the purpose of
this Act the re*erecting of any building pulled down to or
below the ground floor shall bo considered the erection of
a new building. That is this very case. This is not the
erection of a new building ; it is the erection of a building
which, according to the words of this section, has been
pulled down and is proposed to be rebuilt; and that is
treated on the same footing with reference to bye-laws as
the erection of new buildings. It is quite plain that the
local board of Bradford put that construction upon it, for
they made a bye-law under which the present plaintiffs
had the very difficult task of endeavouring to proceed.
The 20th bye-law is in these terms : — ^^ Every person who
shall intend to erect any new building shall give a fort-
night's notice to the council of such intention by writing
delivered to the surveyor or left at his office [that is, notice
to the council, not to any committee], and shall at the
same time leave or cause to be left at the said office plans
and sections of every floor of such intended new building,
showing the position, form, and dimensions of the several
parts of such building," with other words which it is not
necessary to refer to.
The first plan required to be deposited is one to show
the dimensions of the various parts of the new building ;
then, besides that, this is required : — A plan shall be left
at the same time showing the position of the buildings,
and appurtenances of the properties immediately adjoining,
the width and level of the streets, &c.
Notice was given to the council, and plans were de-
sited. It is stated in the bill that, shortly before the month
Of May (the pftrticular date is not stated)* the plaintiff
282 GASES IN CHANCERY.
1803. caused a notice in writing to be sent to the defendants'
Slrb council of their intention to erect such new buildings as
Thk^Cor- required hj the 20th bye-law, to be delivered to the
poRATxoN OF survevor of the said council, or left at his office.
Bradford. ^, ,
The plans and sections so left were several ; they showed
uagmen . ^^^ only, as required by the bye-law, the dimensions
. and particular position of every part of the new building
with reference to other parts of the new building, but,
as mentioned in the bye-law, they showed the position
of the front of the building with reference to the ad-
joining properties. On the 14th May the borough
surveyor informed the plaintiffs that the plans, sections,
and particulars had been laid before the building and
improvement committee of the council, and that the
committee had approved of the same. Whether the
committee had or had not the power to approve is a
question that must be dealt with ; but, assuming for a
moment that they had the power, it is said that this
approval was only a qualified approval, so as to reserve in
express terms to the council the power of altering the line
of the new building with reference to the position of the
street.
The surveyor's note says that the ratification of the
approval of any plans and particulars by the building and
improvement committee refers only to such matters and
to such parts of the said plans and particulars as are
required to be set forth, shown, or described therein in
accordance with the bye-laws. But it appears that the
bye-law required, as one of the particulars, a plan of the
line with reference to the adjoining buildings. It is said
that the following passage amounts to a qualification :— -
" It will, therefore, be understood that the approval of the
committee gives no authority whatever for the making of
any projection on the front of any building into any street
beyond the proper line or for placing any building material
on any part of any street or road;" and here. are the
words — "with reference to plans of buildings of an
CASES IN CHANCERY. 2'83
lines or widths of causeways or streets, or of the height 1863.
of any new chimney proposed to be built in connection sx.bb
with any mill, manufactory, or business premises whatso- thb^'oor-
ever, although any or all of such matters may be fully i^ohawok op
set forth, shown, or described in the plans, sections, and —
notices deposited with and approved by the committee." ««^'w
So far the language would seem to favour the construction
of the defendants, but these words follow : — " But in
every case in which such work, alteration, interference,
&c. (that is width of the street or the line of the building),
is required to be done, separate and specific notice thereof
must be given to the borough surveyor, and the consent
or permission of the committee or council obtained for
every such work." But specific notice, as specific as a
plan could give, was given on the first of the plans de-
posited, which shows exactly the line in which the front of
the building was proposed to be erected by the plaintiffs ;
and, therefore, this qualification of the approval in no
degree interfered with that argument upon which the
plaintifb insist, namely, that their plan gave notice of
of and showed everything that was required to be sub-
mitted with reference to the line of the new building for
the approbation of the committee or of the council. This
reduces the question to this point — whether the council
have, under the 35th section of the Act of Parliament,
a power reserved to them to contravene the approval of
the committee ; for that the approval of the committee
was given to this line of building under as specific a
notice as their bye-law, and their intimation of the
qualification which is annexed to their approval, required,
is beyond question.
The 35th section of the Act of 1858 is in these terms : —
" When any house or building has been taken down in
order to be rebuilt or altered, the local board may pre-
scribe the line in which any house or building to be here-
after built shall be erected, at the same time making com-
pensation.''
a84 CASES IN CHAWCERY,
law* The difficulty is in reconciling the absolute and clear
9lsb language of this clause with what is previously stated in
Tkb^Coe- *^® ^^^^ clause ; but, taking the two together, it seems
poBATioir OF to me that the 34th section authorised the local board to
Bbadfokd*
make bye-laws upon the subject, and that the 35th section
HO^mintn ^^^ ^^2y ^Q considered to apply to the case in which a
building has been taken down without previous approval
of the plan. I can find no other way of reconciling the
two provisions of the Act, because the construction con«
tended for by the defendants would go this length, that,
although a man's plans and sections of his building may
have been approved of, it is not until he has actually taken
down his building, whether the plan has been approved
of or not, that the question of how it is to be re-erected
with reference to the line of the street, is to be con-
sidered and determined
It is plain that, if the object of the Act of Parliament
was the improvement of the line of street, it could never
have been the intention that, although before the building
was taken down plans and sections with reference to the
line of the building in connection with the line of the
adjoining buildings and streets had been approved of,
and the owner of the building took it down upon the
faith of its being erected in the old line, yet, after the
building had been taken down, a new power should arise
on the part of the town council to say, " Although the
owner pulled down the building expecting to build it up
in the old line, we will prohibit it from being so built*'
That is not a reasonable construction, and could only be
adopted by this Court upon clear and unqualified Ian*
guage of the Legislature. The language of the 34th
section, taken in connection with the 35th, shows that
there is nothing in the 35th section (which is silent about
plans) to interfere with what has been done with reference
to the^approbation of plans of new buildings to be erected
in reference to the line of the street*
CASES IN CHANCERY. 285
It' is impossible not to feel that there is very great diffi- iflCg>
oulty in arriving at the true construction of these Acts of slbx
Parliament, and this is distinctly shown by the fact that j^^com^
when the town council resolved to interfere with the po«atioii of
plidntifiy they misunderstood the Act of Parliament, and
believed they had under the Lands Clauses Act a power
to purchase all that piece of ground that would be lef I
between the old line of the street and the new line of
the front. The question, then, is whether, where the
owners of a manufactory have delivered plans for the
approval of a town council, and the council by their com-
mittee signify the approval of their plans, and when, on
the faith of that approval, the building is taken down, it
is competent to the defendants to alter the plans as to the
front of the building. In my opinion the council had
power to make bye-laws. The plaintiffs gave such notice
under these bye-laws as was necessary, not only as to the
plans of the particular parts of the building, but as to the
position of the front of the building with reference to the
line of street Under such circumstances the approval
fpren by the surveyor, not of the committee, but of the
conncil, that is to say, of the local board, is one upon the
faith of which the plaintiffs were justified in the course
they took, and, if so, the defendants have no right now to
interfere with the plaintiffs in re-erecting their building
according to the plan which was approved with reference
to the line of the street.
It has been argued that, although the defendants have
insisted upon the line of the new building being set back,
they do not threaten to pull it down again if the plaintiffs
should proceed to build it ; that they do not threaten to
exact a penalty; and the whole line of their argument, and
all that they have been struggling for in this Court, is
their i^ight to insist upon the plaintiffs setting it back.
The injunction which the plaintiffs seek is to restrain the
defendants from interfering in any way or exacting any
Jwd^memi*
JudgmtnU
286 CASES IN CHANCERY.
1863. penalty. In the present stage of the litigation the plain-
Slbb tiffs are entitled to the injunction of the Court to pre-
Trb^'cor- ^^^* ^^^ apprehended interference. The position of
TORATioir OP t;iie present plaintiffs seems to me eminently to require
the benign consideration of the Court. In good futh,
with an honesty which cannot be impugned, they pulled
down their building, relying upon the approval of the
committee, and trusting without doubt that when they
had pulled it down they might rebuild it in the same
line with reference to the street as indicated in the
plan which had been approved by the surveyor of the
town council. If I were, by refusing an injunction now,
to leave the question in the state in which it would be
but for the interference of the Coui't, the position of the
present plaintiffs would be one of great difficulty. Their
manufactory would .remain pulled down, although its
immediate re-erection is obviously required for the pur-
pose of continuing the works and setting the business
going which they have been for years engaged in con*
ducting. Upon the whole, with a full sense of all the
difficulties of the question, I must grant an injunction
until the hearing of the cause to restnun the defendants
in the terms of the notice of motion.
CASES IN CHAKCERV. 287
ADAMS V. SWORDER.
XHIS bill was filed by the plaintiff against Thomas Theplain-
Sworder and William 6. Ree» praying that the sale to the cated bank-
defendants by the plaintiff's assignees in bankruptcy of ^^JJ^nded
the life interest of the plaintiff in a freehold estate called with his
creditors, filed
the Cannons Estate^ and of a policy of assurance on the abuiimpeach-
plaintiff's life, might be set aside as fraudulent and void, i^m hto *^
The plaintiff, prior to his bankruptcy, carried on business ^^l^f ^j^^
as a banker and a maltster at Hertford and Ware» and was property by
adjudicated bankrupt in July, 1856. Two of his creditors his asaigoees;
were appointed assignees of his estate, the ofiicial assignee eroM-ezami-
being Mr. Whitmore, and afterwards Mr. Cannan. nation in
*^ Court it ap-
The defendant Thomas Sworder was a member of the pearing in the
firm of Longmore, Sworder, & Longmore, solicitors at coiut that
Hertford, who, together with Messrs. Lawrance, Plows, & ^^ wm^u-
Beyer, were employed by the assignees as joint solicitors dnient,and
At .^"111 thht after his
to the estate m the bankruptcy bankruptcy he
The bill alleged that the defendant Sworder, having J^Jf^^^
acted as solicitors to the assignees, had acquired a know- «>me of hii
ledge 'of the value of the estate. The bill also alleged Tested in his
that the defendant Ree, a partner in the firm of Ree & ^^^' ^
Son, surveyors and auctioneers at Ware, had been em- g"Jj^^^^^ jjj,
ployed by the assignees in making a survey of the estate, own benefit
and in that capacity acquired a knowledge of its value. him at the
The property now in question was advertised for sale by baikrwp^tcy
public auction, tocrether with other property of the ^dnot
*^ » o r ir J ^ entered in his
plaintiff, on the 2l8t October, 1856. The particulars schedule or
stated the lot to be of the estimated annual value of 750/., to hiTassignees
and that the age of the plaintiff was forty-seven years. JJ/no^rt'Jis-
Upon the life estate being put up for sale the highest miwedthe
bidder was Mr. Henry Page, of Ware, who bid 2860/. for without pre-
the lot ; but the assignees bought it in at 2890/. ^^^^^ ^^^^^
TOL. IV|* U assignees.
288
1863.
Adams
V,
SWORDBR
Statement.
CASES IN CHANCERY.
On the 23rd December, 1856; the property was again
put up for sale by auction at the Saracen's Head, Ware.
The particulars were stated as previously with regard to
the freehold estate, and that two bonuses, amounting
together to 118/. lOs. had been declared on the policy.
The defendant Bee was declared the purchaser for the sum
of 20207., which was inadequate.
The defendants Sworder and Ree admitted that it was
agreed between them that Sworder should advance the
money at the sale in case the defendant Bee bought, and
that they should be jointly interested in the purchase, and
bear the profits and losses equally. In the deed of convey-
ance from the assignees, dated 6th August, 1857, it was
expressly recited that Sworder had advanced the sum of
2020/. to Bee. The conveyance was to Sworder, subject
to redemption on payment by Bee of 2020/. and interest
The answer also admitted that the defendant Bee was the
sole bidder for the life interest, but the defendants said
it was not the fact that the sum was not three years*
purchase for the life interest, and they made out the con-
trary by reference to the true annual value of the life
interest.
The debts under the bankruptcy were about 95 fiOOL,
and the assets about 60,000/.
In I860 the plaintiff proposed to make a composition
with his creditors, under the Act of 1849, at the rate of
65. in the pound ; and in pursuance of such proposal a som
of 500L was in February paid by the plaintiff into the
Bank of England.
By a deed dated the 14th March, 1860, and made
between the plaintiff of the one part and the assignees of
the other part, reciting, amongst other things, the adjudi-
cation in July, 1856, and that at a meeting of his creditors
on tho 6th January then last past the plaintiff made an
offer of composition with his creditors, which was accepted ;
and that at another meeting on the 10th February nine*
StaUm§ nt.
GASES IN CHANCERY. 980
tenths in number and Talae of the creditors then prtaent JW.
agreed to accept the offer; and that by such offer the Apak9
plaintiff and one James Mason agreed to pay to the ^^oapsa
creditors 600/. by way of composition, and by way of fiiU
discharge of all debts and claims due or claimed to be due
from the plaintiff to his creditors under the bankruptqr ;
and an order of the London Court of Bankruptcy, dated
the lOth February, I860, giving liberty to the plaintiff
to pay in the 500/. ; and that the sum of 500/. had been
duly paid to the official assignee ; and that various sales
had been made of the plaintiff^ real and personal estate
by the assignees; and that it had been agreed that, in
order to protect and indemnify the assignees, '^ and all
persons claiming under them," from all liability and risk
incurred by them by reason of any acts or things done or
authorised to be done by them ; and in order to ratify and
confirm all such acts and things : it was witnessed that the
plaintiff thereby ratified and confirmed all and singular
the sales, ^., entered into by the assignees ; and thereby
declared that eyery such sale, purchase, contract, agree*
ment, &c., should be thenceforth as binding on him as if
the bankruptcy had not taken place; and he thereby
acquitted and released the assignees, ko.
On the 4th May, 1860, Mr. Commissioner Fane made
an order whereby, after reciting the order of the S5th
July, 1856, 500/. had been paid into the bank ; and re-
citing also an indenture of release and indemQlty to the
assignees bearing date that day, which indenture had been
executed by the bankrupt, and Mr. Lawrance, solicitor to
the assignees, appearing and consenting to the order, it
was ordered that the adjudication be annulled and the
petition be dismissed; but the order was expressly without
prejudice to any sale made, or other act, matter, or thing
done by the assignees or otherwise under the abjudication,
and also without prejudice to the right of the creditors to
receive the said sum of 600/,, and any other sum m the
TJ 2
290
1863.
Aadxs
V.
SVORDBR.
Statement.
CASES IN CHANCERY.
handa of the official assignee^ by way of dividend or com*
position.
On the 9th of July, 1861, the plaintiflf filed this bill
impeaching the purchase by Sworder, and made certam
amendments, but the assignees were not parties to the
suit.
The defendant Sworder^ by his answer filed the 5th
October, 1861, denied the plaintiff's right to impeach the
sale^ and contended that^ if he ever had any right to do
so, such right had been lost by the release and indemnity
of the 14th March, I860, or by the delay which had taken
place in instituting the present proceedings.
Argununi. Mr. Maltfit and Mr. Herbirt Smith opened the case for
the plaintiff, and relied on the rule of law that prohibited a
solicitor firom purchasing from his client ; in this case the
property was purchased at a grossly inadequate sum.
Mr. Bacon and Mr. Marten appeared for the defendant
Sworder.
Mr. Hobhoute, Mr. Waller^ and Mr. Newson appeared
for the defendant Ree.
Mr. Hardy watched the case for the acting assignees.
Mr. Bae&n, on the evidence being read, cross-examined
the plaintiff^ who admitted that atlter his bankruptcy he
lived in and about the neighbourhood of Ware. He
knew Bee before the bankruptcy, and was on intimate
terms with him. Since the bankruptcy he had fre-
quently called at his house. He knew Ree was in
possession of the garden part of the premises; knew
that he had bought it at the sale. He knew what Bee
gave for it; he never remonstrated. Ree said witness
might live there again if he pleased. Witness told his
CASE8 IN CHANCERY.
291
solicitor he did not know who the real owners of the
property were, but thought he could get the receipts from
the tenant. Witness went to James Mason, and got the
receipts from him in May or June, 1861. They were
dated 15th October, 1858. Witness was positive he got
them in May or June, 186L
That witness had brought an action against a person
named Cobham for a sum of 60/., which he advanced to
him for the purchase of a share in the Town Hall, 1856.
This the witness forgot to state to the assignees.
That witness had had a litigation with his nephew
Samuel Adams for money advanced to the latter during
his minority, to the extent of 997/. He had sued his
nephew since the bankruptcy. The matter was referred
to arbitration, and the balance was about to be paid. This
did not appear on the face of witness's last examination in
bankruptcy^ but the accountant employed by the solicitors
of the assignees knew all about it. The fact that the
nephew owed this money did not appear in the account.
He also commenced an action against a person named
Jordan for 200il, which he owed him. This sum also was
not stated in his schedule.
The witness further admitted that a Mr. Coker, after
his bankruptcy, bought a field and paid 209/. for it^ and
witness paid him 80/. soon after the sale of Cannons, and
the balance in June following. Coker bought as a trustee
for him.
The witness said that his brother Thomas Adams had
given him 100/. two or three times : he thought he gave
Lim 200L in the year 1857. James Gabriel, his brother-
in-law, gave vntness 200/., and more in the year 1857.
He stated that he claimed 10,000/., part of a sum of
30,000/., in a suit of Kay v. Johnston; he further admitted
that six months ago he purchased a house for 210/. He
had sworn to the truth of his last examination in bank-
mptoy.
1S63.
Adams
V,
SWOEDSB.
Argument,
292
CASES IN CHANCERY.
1863.
Adavs
SWOBDBR.
ArgufMnt.
Mr. Page was also cross-examined, and he stated he
would have given 2500/. for the property, but did not bid
at the second sale because he had received a letter from
thd solicitors of the assignees stating that they had no
authority to take less than 3000/.
In the course of the argument, the following eases w^ere
cited on the question of the validity of the sale: —
Chnrman v. Charman (a), Wearing v. Ellis (i), CfBrien
V. Lewis (c)y Hatch v. Hatch (rf), Pooler/ v. Quilter (e),
Ex parte Morgan i^f)^ GresUy v. Mousleg (g)y Ex parte
James (A), Gipps v. Daniel (i), Stump v. Gabg (ft).
At the conclusion of the evidence, the VicE-ChAncel-
LORy addressing the plaintiff's counsel, sud, assuming that
you establish the case alleged in the pleadings that this
sale was improper, how can th^ plaintiff maintain this suit
when his title depends on a composition which it is evident
was fraudulently obtained? The assignees are not before
the Court
Mr. Malins — The plaintiff mtist proceed without as-
signees, because there were none. The conduct of the
plaintiff in the matter of his bankruptcy was not what it
ought to have been, but still that did not deprive him of
his civil rights. As soon as the adjudication in bankruptcy
was annulled the plaintiff resumed all his rights over the
property. Because a plaintiff had once done wrong he
was not for ever to be refused relief. In the case of
Sharp V. Taylor (J) ^ where the plaintiff sought an ac-
count of moneys which had been obtained by means of
a violation of the fiscal laws, the same objection now
taken was raised, that the plaintiff could not sue, but
Lord Cottenham refused to listen to the objection. The
(a) 14 Yes. 980, 584.
(h) 6 De G. M. & G. 696.
(o) Ana, 221.
(d) 9 Ves. 292.
(e) 2DeG.&J.327.
(/)l«Ves. 6,
07) 4 De G. & J. 78; s-c. 1
GifiP. 450.
(h) 8 Ves. 337.
(i) 4Giff. 1.
(;fe)2DeG.M.&G.6d3.
(0 2 PhiU. 801.
CASES IN CHANCERY. 293
plaintiff was now in the same situation as if he had got '^^^
the property back from persons to whom he had given a xdxub
power of attorney, and which he had revoked. Swokdbr.
The Vice-Changellob : —
The plaintiff's right to sue, if any, depends upon the
arrangement entered into by his creditors with him, and
upon the deed of composition and release founded on
the arrangement, which has been sanctioned by the Court
of Bankruptcy. If it appears that the composition was
not in fact made hon&Jide ^the plaintiff's right to sue does
not exist. Now> from the evidence of the plaintiff him-
self it is quite plain that the agreement, which had been
sanctioned by the Court, was entered into by the plaintiff
after he had purchased forhimself part of the property which
passed under the bankruptcy. £arly in the case I put it
to the plaintiff's counsel whether it was possible to
proceed with the suit without there being some one to
represent the creditors. The plaintiff thought he could
maintain the suit. But, supposing the plaintifif's claim to
be made out, it seems clear that any benefit which may
accrue to him under the suit ought to belong to the credi-
tors who have received 6f . in the pound only of their debts.
Had the estate been sold at double the value not one
penny of the proceeds ought to have found its way into the
pockets of the plaintiff. Under these circumstances the
bill must be dismissed, but without costs, and without
prejudice to the rights of the assignees in bankruptcy to
take such proceedings as they may be advised.
Judgnunin
294 CASES IN CHANCERY.
1863.
Ma^^u. ;LODGE V. PRITCHARD.
Jl RIOR to the year 1837 Adam Lodge, of Lirerpool,
merchant, carried on business with Robert Grares and
Where one of
two partners
died and the
other eoon
afterwards be- Cvrus Morrell as ropemakers, under the style of Graves
came bank- ^
rapt, the Joint & Company. Messrs. Moss & Co. were the bankers of
administn^ the firm. In 1837 Adam Lodge died, having appointed
Md^w*2' Messrs. Pritchard, Colbom, and Lodge his executors,
rate estate of and at his death upwards of 7500/. was due to Messrs.
partner in this Moss from the firm of Graves & Co. Soon after Mr.
that the^tat ^odge's death Graves, the surviving partner, became
creditors who bankrupt, and on the 14th March, 1838, the whole of
were part
paid in bank- the bankrupt's estate was divided among his creditors,
not entiUed Messrs. Moss & Co. proved for their debt, and received
a^MUhe * dividend amounting to 437/. 145. lOd. out of the bank-
separate esute rupt's estate, leaving a balance due to them of upwards of
partner paH 7000/. In 1842 Mr. Morrell filed a bill against the
croditoro'of^* tcstator Adam Lodge's executors in order to obtain the
the solvent the benefit of a certain agreement which the Court
partner. , ,
Whore a declared established against the separate estate of Lodge.
takes the be- Subsequently one of the residuary legatees under the
fof^m*^t^* will of Adam Lodge filed a bill to administer the testator's
teringthe estate. The executors also filed a bill for the same
soWentpartner purpose, and in 1850 Messrs. Moss & Co. also filed a
oMer ftr pa^ bill to administer the testator's estate. The accounts
mentofhis ^ere accordingly taken. In 1857 Morrell revived his
debt and costs, ^
the executor*' suit, and filed a supplemental bill claiming the benefit of
dhaigeT^t^' the administration suits, and that the testator's estate
ecutors^ye " ^^S^^ ^® applied in payment of his debts. The conduct
denied asseU of the suits was given to Morrell. Moss and Morrell were
postponed to the only simple contract creditors who proved. On taking
Msts^of the^ the accounts the testator's estate was found to be insuffi-
joiatersditor. cient to pay his debts*
PbXTOHAB0«
GASES IN CUANCERT. 295
Mr. MaHns and Mr. & Smith, for Morrell, a simple laos.
contract creditor of the separate estate of Lodge, con- j^^
tended that the joint creditors could only claim against
the surplus after the satisfaction of the separate debts :
GrayY. ChisweU(a)y Ridgway v. Clare Cb). But even -*'^^"^'-
were the joint creditors entitled to proceed against the
joint estate they would be entitled to payment according
to priority : Morrice v. The Bank of England {c\ As to
costs, a simple contract creditor who filed a bill to admi-
nister the debtor's estate was entitled to his costs in
priority over specialty creditors: Larhin$ v. Paxton{dy
See also Ex parte Kennedy («)•
Mr. Southgate and Mr. Druee for the Messrs. Moss,
creditors of the partnership.
In this case there was no longer any joint estate, and the
creditor was therefore entitled to prove against the separate
estate of Lodge. In Cowell v. Sikes{f)it\^BB laid down
that in a creditor's suit for administering the assets of B.
a joint creditor of A. and B. was permitted to prove, A.
having become bankrupt, there being no joint assets of A.
and B. In Ex parte Baureman {g)\i was declared that a joint
creditor could prove against the separate estate where
there is no joint estate and no solvent partner. The
same doctrine was in effect laid down in Sadler r.
Jaehan{h). ^Wilkinson v. Hendereon (t), Devaynee v.
Noble{k) were also cited.]
It was clear, therefore, that in the present state of cir-
cumstances the creditor was entitled to have his debt and
costs satisfied out of the separate estate. The executors
(a) 0 Ves. 118. (/) 2 Rusii. 191.
(b) 19 Beav. 111. (g) 3 Dea. 476.
(e) 3 Swanst. 673. (h) 16 Yes. 62.
{d) 4 M. & E. 320. (t) 1 M. & E. 682.
(e) 2 De G. M. k S. 228. {k) 1 Mer. 530.
296
1869;
LoDoa
V.
PftlTCIfAIIO.
CASES IN CHANCERY.
had denied assets^ and it wag clear the creditor's costs
must be paid in priority to theirs.
Mr. Bacon and Mr. Kay. — The ordinary rule was that
the executors were entitled to their costs as a prior charge,
and there was no ground for departing from such ordinary
rule. ^Tipping r. Power {a\ Gaunt v. Tayl&r (b)^ nxii
Bennet v. Going (c) were cited.]
Mr. Greene^ Mr. Welford^ Mr. Busk^ and Mr. Sttrrag^
appeared for the other parties.
Judgment. The Vice-Chancbllor : —
Where there are two partiiers, and on6 has become bank-
rupty and the other, a solvent partner, has died before the
bankruptcy ; and where there are joint debts of the part-
nership ; where also there is to be in bankruptcy an ad^^
ministration of the joint estate, and in this Court an
administration of the separate estate of the deceased
partner, I consider it settled not only by the case of
Gray v. ChiswelU but by subsequent decisions, that
the joint creditors, who have received only part payment
out of the joint estate under the bankruptcy, although
they may come in as creditors upon the estate of the
deceased partner^ cannot come in pari passu with the
separate creditors of the deceased partner.- Cowett r.
Sikes, unless upon very close examination, seems to dis-
turb this view ; but in fact it does not. The judgment
of Lord Gifford in Cowell v. Sykes affirms the prin-
ciple upon 'which Gray v. ChisweHyreiA decided. He bbjb,
'^ The only authority on which it has been attempted to
support this petition is the case of Gray v. Chiswett, where
creditors having joint demands against two persons, of
whom the survivor became bankrupt, were permitted to
(a) 1 Hare, i05. (b) 2 Hare, 413, (e) 1 MoUoy, 129.
Judgmtnt,
CASES IN CHANCERY. 297
prove against the estate of the one who was dead> and 1B03.
to come In for payment of what was due to them losqb
upon the surplus which remained after satisfying the pritc^bako.
separate debts. There the Lord Chancellor did not
permit the joint creditors to come in pari patiu with the
separate creditors, and that part of the order which is
relied upon as furnishing a precedent here does not seem
to have been opposed." Lord Gifford stating that this
was what was decided in Gray t. Chiiwell^ does not
affect to disturb it. Lord Eldon^ before whom the
case of Cowell v. Siket came^ upon a petition which
was not regularly a petition of appeal^ gave his final
judgment in these terms: — ''In the circumstances of
this case, the proceedings at law^ and the state of the
funds, I think the creditor may prove against the sepa»
rate estate "(tf). No doubt he may. But that does
not prove that he is to be paid pari passu with the
separate creditors. I find, in a case of Ridgway v. Clares
before the present Master of the Bolls, the principle
is laid down exactly in the same terms as in Gray v.
ChiswelL The Master of the Rolls says, ''Suppose
the surviving partner insolvent, either there is a bank-
ruptcy or an insolvency, in either of which cases the
case of Gray v. Chiswtll is precisely in point ; and there
the jomt creditors must resort, in the first instance,
to the joint fund, and can only come against so much of
the separate estate as will remain after paying the separate
creditors ^ (&). That is a very recent decision, and affirms
the principle so clearly that in my opinion it ought not to be
disturbed. Lord Bldon and Lord Thurlow in the earlier
cases express surprise that joint creditors were allowed
to come in at all« Li this case I have no doubt upon the
subject; and if it be necessary to have a declaration, I shall
declare that the joint creditor is entitled to claim only
(a) 2 BiU8. 109, (^) 19 Beav. 110.
298 CASES IN CHANCERY.
IMS.
upon 80 much of the estate of the teatator Lodge as shall
LoDGB remaia after paying the separate creditors.
Prztchard. The costs of Moss & Co., and the costs of Morrell
Judgment. Beem to me to stand on a very different footing. If MorrelVs
debt and costs were paid in priority to the claim of the
executors there would remain quite sufficient to pay the
executors, so that it is hardly worth while to raise the
question. But Moss & Co. came here on a different
footing. I think that where a joint creditor comes in to
take the benefit of a decree to administer a separate
estate, unless in an extraordinary case, the costs of the
executor, as well as the payment of the separate debts,
must come out of the assets before the joint creditor can
get anything. There may be extraordinary circumstances
of conduct which may raise a question between a joint
creditor and an executor. But here there is nothing of
the sort, the only irregularity being with reference to the
payment of some of the debts of joint creditors. I have
not a doubt that the executor's costs ought to come out of
the assets before the joint creditor can get anything.
But I have an equally strong impression, on looking
at the nature of the litigation, the decree obtained by
Morrell, and his position as a litigant, that he is entitled
to his principal money, interest, and costs, including all his
costs in the litigation, before the executors. When a cre-
ditor, suing for his own debt, gets a decree of the Court to
pay his debt and costs, that, being a specific order in hb
suit, inyolves the costs of his litigation. But if the execu-
tors do not admit assets, and there is to be an account taken,
and thereupon assets are found, upon what principle can it
be held that the executors who have denied that there are
assets be allowed to have their costs before the creditor ? I
should be very sorry to disturb the general rule which en-
titles executors to have their costs of administering the assets
to a testator. That genei*al rule proceeds on a very plain
GASES IN CHANCERT. 299
principlei that before what has been entrasted to them and i5^
18 in their hands is taken out of their hands they shall be I^dob
indemnified against all expenses incurred in the discharge PaxroHABii
of their duty. That principle ought not to be disturbed. jJd^HHigne.
Another principle that ought not to be disturbed is, that
when, in a complicated litigation for the administration of
an estate, one creditor alone, upon one particular document
which he holds, as in this case, has been obliged to come
forward, not to be a litigant on behalf of himself and all
other creditors, but to recover payment of his own debt, if
after a litigation of some duration he succeeds in getting
a decree of the Court which directs that the executors
shall pay his debt and costs without any mention what-
ever of the costs of the executors, that decree is to be con-
strued so as to give the creditor a right, which attaches
upon all the assets, to have his debt and costs paid. That
seems to me to be this case, and I do not see that I can
accede to what is asked on the part of the executors as to
Mr. Morrell, without depriving him of the benefit of the
decree, which he seems to have got not without difficulty
and not without expense. So the matter stands, clear of
the question of the administration of the estate. The
report as to the administration of the estate was not made
in Morrell's suit. As to the report in the suit in which
the executors' accounts were taken, and in which they
undertake to show that in the very difficult position
in which they were placed they have accounted for
everything — as to that they are entitled to have their
C09t8. But it is impossible' to deal with the suit of
Lodffe V. Pritchard before Mr. Morrell is disposed
of. Lodge v. Pritchard is for the general administration
of assets. Morrell's suit is for the recovery of his own
debt, and now the time has arrived when nobody denies
that he is entitled to be paid. The question is simply
as to costs ; and I think I best follow the rules of this
Court, so as to give theur just rights to all parties, by
Judgment.
CASES IK CHANCERY.
holding that, in this particular case^ Morrall has e»isir
blished his right to a decree for the taxation of all his
costs of the litigation, and to the payment of his debt and
those costs.
Feb. nth.
onabiu SELBY V. BOWIE.
hytkceMtuiqus
trust against •*•
e^Xn""^ J ANE SELBY, who up to her death carried on business
iTaWe for^*°* ^ ^^ out6tter at Portsmouth, by her will gave all her
lossaUegedto real and personal estate, of whatsoever kind, to thede-
sustained by fcndants, their heirs, executors, administrators, and assigns,
the testator's ^P^*^ trust, as SQOi^ as Conveniently might be after her
business and dcccase, to scU and absolutely dispose of the same by
stock in trade ' _, . , n » •
against pubuc auction or private contract, ''fpr such price or
pifdntiff;^to ^ prices in money, and under such stipulations or conditions
instwSrf' ^ ^^ *^*^® ^^ otherwise, and generally in sucli manner in
another, who, all rcspects as they or he, her said trustee or trustees
would haye for the time being, should think fit." The will also went
offer* Sie '^'"^ ^^ ^^ provide " that her said trustees should be without
Court held responsibility for any loss or damage to be occasioned by"
trustees such sale or sales ; and the money was to then form part
wtth due^de- of the personal estate. She then gave certain life annuities
in'Se^hraest^ and pecuniary legacies, and bequeathed the whole of the
exercise of residue to the plaintiff, her brother, for life, without power
tion, the trus- of anticipation, and after his decease as he should by will
Uabie^and^^' appoint, and in default of appointment to her own next
^yethem oif kin under the Statutes of Distribution.
their costs of
the suit. Besides her business she was also seised of the fee
simple of the shop and premises on which the business
CASES IN GHANCBB7. 301
wait carried on, as deyisee under the will of her brother 186S.
John Charles Selby. Shut
J. C. Selby had conducted the business for thirty-four ^^ir
years, and after his death in 1854 the testatrix contmued
it. The stock in trade at his death was very valuable^ and
the outstanding book debts amounted to about 14|000/.
Soon after the death of the testatrix a dispute arose
between the plaintiff and defendants as to the disposal of
the business. The plaintiff was anxious to sell it to
Messrs. Fraser & Davis, on the ground that Fraser had
been the foreman of J. C. Selby for twenty-six years
prior to his decease; and that J. C. Selby before his
death addressed a letter to him, in which be stated it had
been his intention to continue in the business for a few
years, and then hand it over to Fraser, and recommended
him to carry it on for Mrs. Selby, and that she would
reward him liberally.
Fraser managed the business for the testatrix until the
24th May, 1856, when a dispute having arisen he left her
service, and started in business on his own account in
partnership with Mr. John Davis. On the 22nd Feb-
ruary, 1862, Messrs. Fraser & Davis wrote to the plain-
tiff offering to take the business ; the stock at a fair valua-
tion for ready money, and the premises at a rental of 140/.
a year ; or to purchase the premises at a fair valuation.
The trustees wished to dispose of the business to
Messrs. Guy & Eames, who had been in the service of the
testatrix, and who were also desirous of purchasmg the
stock in trade and paying for the same by instalments.
These gentlemen also offered to rent the premises at 100/.
a year; but upon being informed of the offer of Messrs,
Fraser & Davis they sent a written proposal, dated the
27th February, offering to take the stock and shop
furniture at a valuation to be made in the usual way, and
to be paid for in cash on the I5th April, a firm in London
Statimmii*
302 CASES IN CHANCERY.
IB^ undertaking to make the payment. The proposal was
Sblbt that the premises, including fixtures and trade fixtnresi
Bowia^ were to be let for a term of fourteen years on a repairing
lease, at a rent of 140/., from Lady Day then next
The outstanding debts to be collected by the execntorB ;
Messrs. Guy & Eames to assist the executors in making
up the accounts of the estate and coUectmg the debtSi if
required so to do, but not to have any right to interfere.
The plaintiff on the 14th March, 1862, filed this bill
against the executors and trustees of the will of Jane
Selby, praying that the trusts of the will might be carried
into effect and the usual covenants taken. The bill also
prayed for a receiver ; also that the defendants might be
restrained from selling testatrix's business and stock-in-
trade, and from letting the business premises to Messrs.
Ouy and Eames, upon the terms of a memorandum of the
27th February, 1863, "or" (by amendment) "that de-
fendants might be personally charged with the loss which
the Faid testatrix's estate had sustained by reason of their
entering into such agreement and selling the said business
and stock-in-trade, and lettmg the said business premises
on the terms therein mentioned.
The bill alleged that the offer of Messrs. Fraser and
Davis was a mere offer, and that they would have made a
much higher offer ; that they were willing to give 200^ a
year rent for the premises, and have purchased the
goodwill, or to grant the plaintiff an annuity for life.
The defendants in their affidavit, dated the 19th
March, denied that the plaintiff had ever insisted on the
goodwill being sold. They further stated that they had
.fully and deliberately considered and discussed the subject,
and came to the conclusion that, having regard to the
magnitude of the debts, it would be most important to
secure the services of Guy as being the only person who
knew anything about the outstanding debts, and that it
would be more advisable to sell to Messrs. Guy & Eames
than to any other persons.
statement*
CASEli IN CHANCERY. 303
The plaintiiF sabsequently amended the bill. 1863.
The bill charged that the proposed sale to Messrs. Guy q^^
& Eames ought to be restrained, and that the offer of ^'
Messrs. Fraser & Davis ought to be accepted, or that the
premises ought to be put up for sale by public auction, or
otherwise offered for public competition.
On the 22nd March the plaintiff moved for an injunc-
tion to restrain the defendants from acting on the agree-
ment of the 27th February, 1862, but his Honour refused
to grant the injunction, but by consent directed a reference
to chambers to ascertain whether it was for the benefit
of the parties interested under the will that the said agree-
ment should be performed. On the 7th May the
defendants put in their answer, in which they alleged that
the plaintiff had himself sanctioned the agreement with
Messrs. Guy & Eames, and had assented to the relin-
quishment of a premium for the goodwill.
The plaintiff in his affidavit deposed that he did not
believe that Messrs. Guy and Eames had the means of
carrying the agreement into effect. The affidavit also
set forth the circumstances under which he objected to
the course pursued by the defendants.
The chief clerk on the enquiry certified that the property
would be more advantageously disposed of by private
contract than by public sale, but that independently of
the question whether Messrs. Guy & Eames, from their
intimate knowledge of the affairs of the testatrix, might
not be considered as the most eligible purchasers, the
value of the annuity of 140/. was not commensurate with
the risk of loss that might be sustained by the estate
from the result of further litigation that would ensue upon
a repudiation of the agreement.
On the 10th July, upon a motion on behalf of the plain-
tiff to vary the certificate. His Honour made no order except
that the costs of the application be costs in the cause.
VOL IV. X
304
CASES IN CHANCERY.
lera.
Selbt
V.
BOWIB.
Argument,
Mr. Malins and Mr. Mcrris for the plaintiffs.
The evidence showed that the defendants took no steps
to ascertain whether more advantageous terms could not
have been obtained by them than those they agreed on the
27th February, 1862, to accept. Messrs. Fraser and
Davis never had an opportunity of advancing beyond their
first offer^ or they would have done so. There was therefore
a loss arising from the precipitate and arbitrary conduct of
the defendants, for which they were responsible. In
Taylor v. Tahrum {a,^ trustees who were directed to sell
an estate as soon as conveniently might be after their
testator's death by the desire of one of the ce$tuU que
trust refused an offer for 6,600/., but afterwards sold the
property 3,600/. The Court charged them with the loss,
but as their conduct had not been perverse,, gave them
their costs. That view of the law was adopted by the Lord
Chancellor in Harper v. Hayes (6). The principle laid
down was that it is the duty of trustees to use all
diligence to obtain the best price for the property.
Here the defendants wholly disregarded the wishes of
the cestui que trusty to which within certain limits they
were bound to attend, and agreed to sell the property at
a lower price.
Judgment,
The Vice*Chakcellob: —
The case has been now fuliy considered, and upon the
evidence I think it has been clearly shown that having
regard to all the drcumstances which led to the agreement
of the 27th February, 1863, the conduct of the defendants
cannot be impeached. It appears that they acted band
fide and in a careful and proper way* There was in fact no
great disparity between the two offers made. The dif-
ference between them was not considerable, and on the
(a) 6 Sim^ 281.
(») 2 De Gi F; & J. 542^-546 } 8^ C. 2 Gift 210.
CAS£S IN CHANCEBT.
question which of the two was the most adrantageous there
might be an honest difference of opinion. Moreover there
is a conflict in the eyidence whether the plaintiff insisted
on the point which constituted the principal difference
between them. But howevar that may be^ this seems
dear that the defendants bond fidt and with an honest
desire to do their duty entered into the agreement of the
27th February^ 1862, and they are entitled to the &TOur-
able consideration of the Court.
It has been contended that the defendants refused to
pay proper attention to the plaintiff's wishes. I am not
aware of any authority which establishes the proposition
that, where there are two offers equally advantageous, one
of which is preferred by the cuiui que truit that it is the
duty of trustees, against their own opinion, to accept that
offer. In this case, however, the evidence fails to support
that part of the case on which the plaintiff relies. The
defendants must have their costs in the usual way.
305
isw.
Sblbt
V,
BOWZB.
JudfnunU
X2
306 CASES IN CHANCERY.
1862.
Di^^w. PARKER V. NICKSON.
Where the biU 1 HE bill in this case alleged that Samuel Newns, by
prayed that °
the righto of hi8 wiU dated the 3rd December, 1832, directed his pcr-
fniemt^ Bonal estate to be sold and the proceeds to be applied in
diSJd MdMt discharge of two mortgage debts of 1000/., one of
forth the testa- which was secured to James Chapman and others,' upon
tor's will and , /. i i. ,, . . « i-i i
eodicU,aiid the secuntj of hereditaments adjoining St George s
^e^fe^nt Koad, Manchester, and the other to Miss Sarah Pauldon,
d^bed^^ upon the security of hereditaments adjoining Lloyd
the codicil as Street, Chorlton*upon-Medlock, Lancashire. The te»-
of kin and tator devised the said Lloyd Street property, of which he
and "that he' ^*® seised in fee, subject to a rent, and the residue, if
had obtained any, of the said sum of 1000/., and the residue, if any,
probate on an , r«i
untmeaiiega- 01 his personal estate, to Thomas Airey and Thomas
executors' * Bromiley, their heirs, executors, and assigns, upon trust
th*" b«r*' ^ P*y ^^ rents and profits to his wife Elizabeth for life,
distinct aver- and after her decease, then as to one moiety of his said
character in estate upon trust for his brother John Newns, his hein,
pldnUff^ executors, administrators, and assigns; but in case he
claimed— a should not be living at testator's death, then ^subject to
demurrer ivas , .•• , i./. x j» ^ i .i <• /•
allowed with the widow s life estate) upon trust for the children of
nmond!' John Newns, as therein mentioned, with a trust similar
to the trusts of the other moiety. The testator directed
the other moiety to be held, subject as before, in trust
for his brother William Newns, his heirs, executors,
administrators, and assigns; but if he should not be
living at testator's death, then, subject as before, upon
trust for his children as therein mentioned, with a trust
similar to that of the former moiety. Testator devised
his St. George's Boad estate, of which he was seised in
fee, to his wife Elizabeth, her heirs and assigns, subject
to the payment of the said mortgage ; but if Elizabeth
GASES IK CUANCERT. 307
Newns should die in his lifetime, then he devised the said ,^^^
estate, subject to the debt as aforesaid, upon similar Parxsr
trusts to those which he had declared respecting the nicuov.
Chorlton-upon-Medlock estatCv 'statmUmi.
The bill alleged that the testator^s estate was subject
to seTeral mortgages. He died in 1845. The survivor
of the two executors died in 1854. John Newns, the
testator's brother, died in the lifetime of the testator
without issue. Samuel Newns also died before the
testator, leaving three children plaintiffs in the suit.
Elizabeth Newns, the widow, survived' the testator
and gave her real and personal estate to the defendant
H. Burton.
The following were the material allegations of the
bill 2—
Paragraph 21. Under the circumstances aforesaid the
plaintiffs became and are respectively absolutely entitled
to the said plot of land in or adjoining to Lloyd Street,
and the siud plot of land adjoining to Gore Street and
Carter Street, and the buildings thereon respectively, and
the rents and profits of the said several premises accrued
since the death of the said Aldcrofb Phillips.
Paragraph 22. The plaintiffs, or any of them, never
heard that the said Samuel Newns in any manner
revoked or altered his said will, and they supposed that
he had never done so ; but on the 15th July, 1861, the
defendant Thomas Nickson obtained probate of the said
will, and also of the codicil hereinafter set forth, upon an
allegation, which is untrue, that the said Thomas Airey
and Thomas Bromiley died in the lifetime of the said
Samuel Newns, and in consequence of the said allega-
tion no citation was issued to any person entitled to
dispute the grant of such probate to the defendant
Thonuus Nickson.
Paragraph 23. The said codicil is in the words and
figures following, that is to say : — *^ I, Samuel Newns, of
GhreenhaySf in the parish of Manchester, in the county of
308
CASES IN CHANCERY.
1609.
Paakbx
V.
NZOKiOM*
Siaimnmi,
Lancashire, acknowledge Thomas Nickson my second
cousin, shopkeeper, No. 21^ Chester Street, Chorlton-
upon-Medlock, in the parish of Manchester, in the
county of Lancashire, to be my next of kin and heir-at-
law to all my real and personal property situate in the
parish of Manchester in the county of Lancashire. If
my wife survives me, in two years after my wife's death
my second cousin Thomas Nickson and next of kin to take
possession of all my real and personal property, and to
pay all my just debts according to my will. Thomas
Niokson, my second cousin, is my next of kin and heir-
at-law, as my brother John is dead, and has left no
issue. The reason I give Thomas Nickson this written
document is, I am afrdd my executors will not put my
will into court, as ^they wanted me to burn my will.
Executed this third day of February, in the year of our
Lord 1843.
" Witnesses —
'^ Samuel Ankers.
" John Jones.
The mark of
Samuel Nswns.
Paragraph 24. The allegation made by the said codicil,
that the defendant Thomas Nickson is the heir-at-law and
next of kin of the said Samuel Newns^ is without any
foundation.
The bill then went on to allege that in the month of
October, 1862, the defendant Thomas Nickson caused
the Lloyd Street and Gore Street property to be adver-
tized for sale ; that on the 29th October the properties
were sold to the defendants Joseph Thompson and
Robert Briggs Lomas for the sums of 1460/. and 1070/1
respectively ; but the purchases were not yet completed.
That Thomas Nickson pretended that under the
codicil he was entitled to sell in order to satisfy incum-
brances ; whereas the plaintiffs charged that all the
incumbrances and debts were satisfied except the alleged
CASES IN CHANCERY
309
Pa&xbr
KlOKIOff.
8iut§miHt
balance, which was altogether unascertained, and that
neither the defendant Jane Phillips nor the plaintiffs
desired a sale.
" That the defendant Thomas Nickson is in a low
condition of life and in poor circnmstances, being the
occupier, at the weekly rent of 4«. 6d., of a small house
and shop in Chester Street^ Chorlton-on-Medlock^ for
the accommodation of factory operatives, who bring
their fbod there to be cooked, and he has no other
employment ; and if the defendant Thomas Nickson
be permitted to complete the sale of the said plot of
land in or adjoining to Lloyd Street, and the buildings
thereon, and to sell the [plot of land in or adjoining to
Gore Street and Carter Street, and the buildings thereon,
the purchase-moneys for such sales, if received by him,
will be wholly lost to the plaintiffs."
The bill then prayed that the rights and interests of
all parties in the said properties might be declared ; for an
account ot what, if anything, was owing on the mortgage ;
that upon payment of the balance (if any) by the plain-
tiffs, the mortgagee might be be decreed to convey to the
plaintiffs as they should direct.
The bill also prayed for an injunction against Thomas
Nickson to [restrain his intermeddling with the assets
and completing the sale of the the property.
Mr. Karslake, — The bill contains no allegation of the Arifum§nX.
plaintiff's title beyond the general statement in the 22nd
paragraph. The defendant having obtained probate of
the will, it was submitted that this general allegation was
insufficient to disprove the title of the defendant.
[The Vice-Chancellok. — I think I had better hear
the plaintiff's counsel.]
Mr. MaUns and Mr. Z« Bird for the bill.
The plaintiffs had set forth the documents which dis
310
Park BR
V.
NiCKSOV.
A rgument.
CASES IN CHANCERY.
closed the title under which they claimed, and that was
sufficient. The only title of the defendant arose firom a
mistaken recital in the codicil, but there could be no
valid devise by implication from the mere recital of an
erroneous conception of right : Dashwood v. Pej/ton {a\
Adams v. Adams {b), and Jackson v. Craiff{c). The
only power the defendant Nickson had to sell was, in
the event of there being debts and there being none, and
there being no legal title in him, he could make no
title : Strougldll v. Anstey (d).
Judgnumt. ^j^^ VlCE-CHANCELLOR : -
I think it is impossible from the allegations in the bill
to say under what title the plaintiffs sue; nor can I
understand, with the degree of precision required in
pleading, in what character the defendant Nickson is
brought before the Court. It is impossible to read the
pleadings without seeing that there is a question of oen-
struction to be argued ; but I do not think it possible
upon the bill as now framed to decide that question upon
demurrer. It would be very convenient if the question
could be so decided, but I should require a great deal
more argument than I have yet heard to show me that the
plaintiffs in whatever character they claim are not com-
pletely displaced by the codicil. I cannot understand
now, after having heard counsel on both sides, whether
the plaintiffs treat the codicil as conferring a valid title as
devisee and legatee upon the defendant Nickson. Nor
is he in any passage that I have been able to find named
as legal personal representative; for it is said he has
obtained probate improperly. There is no such allegation
in the bill. It is necessary that the plaintiffs should state
clearly, distinctly, and with precision, the nature of the
(a) 18 Vc8. 27.
{b) 1 Hare, 637.
ie) 13 Jur. 811.
(<0 1 De G. M. & G. OSo.
CASES IN CHANCERY
title ander which they claiin^ and in what character they
claim. The more convenient course on this occasion will
be to allow this demurrer with costs, and give leave to
amend.
311
1802.
JudffiMnt,
PARKER V. NICKSON (a).
X HE defendant now moved : —
That the* re-amended bill in this suit which was filed
on the 20th day of February, 1863*, might be ordered to
be taken off the file as not having been authorised by the
liberty to amend given by the Court, on allowing the
demurrer filed by the defendant to the original bill, and
that it might be deferred to the proper taxing-master to
tax the defendant Thomas Nickson his further costs
of the suit other than and beyond the costs of the
order of the Vice-Chancellor, dated the 11th December,
1862, directed to be taxed, and the costs of the said appeal
by the order of the Lord Chancellor, dated the 23rd
January, 1863, also directed to be taxed, and that the
pliuntiffs be ordered to pay such further costs to the de-
fcedant Thomas Nickson, or in case the Court should not
order the said re-amendad bill to be taken off the file, then
that such further costs as aforesaid might be ordered to be
taxed and paid by the plaintiffs to the defendant Thomas
Nickson, and that the said defendant's time for answering
the said re-amended bill might be enlarged or extended
1863.
AprU 2o.
A bill being
by leaye
granted on
hearing the
demurrer
amended hj
impeaching
the codicil aa
being executed
hj the testator
while in a
state of men-
tal incanaHty.
The defendant
thereupon
moTed to
dismiss the
amended bill
as being
inconsistent
with the
original bill,
but the Court
refused the
motion, and
directed the
costs to be
costs in the
caose.
{a) See the preceding case,
which was nffirmrd an appeal
by the Lord Chancellor on the
23rd January, 1863.
312
CASES IN CHANCERY-
1868.
Statement.
Argument
until 8ach further costs as aforesaid should have been
paid^ and that the plaintiffs might be ordered to pay to
the defendant Thomas Nickson his costs of and incident
to the present application, and the order to be made
thereon."
The plaintiff (paragraph 29) in the amended bill alleged
that the said codicil was not in fact the testator^s testa-
mentary disposition as regarded real estate, and that the
plaintiffs would immediately take proceedings at law to
impeach the validity of the codicil as regarded real estate,
but they were unable to do so without the aid of this
Court, by reason of there being an outstanding legal
estate.
The bill prayed that an issue of devisavit vel non might
be directed to try the validity of the codicil as a devise
affecting real estate. •
Mr. Karslake for the defendant.
The plaintiffs got leave to amend the bill, but not to
make a new case and a new bill inconsf stent with the ori^nal
bill. In the original bill they claimed under the will and
codicil, in the amended bill they impeached the codicil as
invalid. This could not permitted under the ordinary
leave to amend. In Mavor v. Dry (a), the plaintiff by
his original bill impeached a deed, and after the answer
was put in he obtained the usual order to amend under
which he amended the bill by endeavouring to establisli
the deed. The defendant moved to dismiss the amended
bill, and the Court made the plaintiff pay the costs of the
original bill and of the motion. In Deniston v. Littk cited
in Lindsay v. Lynch (&), the amended bill was dismissed.
In Allen v. Spring (c) the same principle was acted on*
Secondly it was submitted that the pluntiff ought to haye
proceeded in the Probate Court
(a) 2 8. & S. 113. (b) 2 Sch. & L^ 12 (note), (c) 28 Beavi 615
CASES IN CHANCERY.
[SeverH v. Fletcher (a) and Cresy v. Bevan (A) were
also cited.]
The Vige-Chancellob, without calling upon the
plaintiff's counsel: —
There is no authority for this application. The plain-
tiff) obtained leave to amend generally by an order which
prescribed no particular form of amendment.
The authorities cited seem to have no application to
the case before the Court They decide that a plaintiff
under an authority to amend is not at liberty by his
amended bill to claim a new estate by a new title ; but
they do not say that a plaintiff is not at liberty by his
amended bill to claim the same estate by another and
more accurate statement of the same title. In Mavor v.
Dry the Court did not order the bill to be tnken off the
file.
With regard to the costs the order asked by the notice
of motion would be improper. In Dent v. Wardel (c), the
costs were ordered to be paid by the plaintiff; but they
only amounted to 5/. In Allen v. Spring the Master of the
Rolls laid down a general rule at first sight not apparently
consistent with the decision in Mavor v. Dn/, but on due
examination of the language it is 2)lain that all the
Master of the Rolls meant to decide was that if a plain-
tiff by amendment makert a case inconsistent with the
case made by the original bill, he must indemnify the
defendant for the costs occasioned by sucii a proceeding.
This is really what was done in Mavor v. Dri/. The de-
fendant is entitled to all his costs down to the time when
the demurrer was allowed, but the costs of this applica-
tion must be the costs in the cause.
313
1869.
Paxker
r.
NlCKSOV.
Judffment,
(a) 5 Sim. 407.
(b) 13 Sim. 3o4.
(t) 1 Dick. 339.
VOL. IV.
314
CASES IN CHANCERY.
1863.
AprU 30.
May I,
Where a
plaintiff filed
a bill, on behalf
of himself and
all other
shareholders
except the
defendants,
against the
company and
the directors
and solicitorSi
alleging
misrepre-
sentation and
suppression,
and praying
for repayment
of the deposits
— a demurrer
was allowed
without leave
to amend.
The payment
required on
allotment Is
not a call.
Where the
memorandum
of association
empowered
the directors,
without fur-
ther authority
from the
shareholders,
to pay a
specified sum
for the costs
and expenses
of the
promoters —
Held, on
<lemurrer, that
a payment
without taxa-
tion was not
improper.
CROSKEY V. THE BANK OF WALES.
1 HIS was a general demurrer for want of equity.
The bill wa^ filed by Joseph Rodney Croskey, on
behalf of himself and all the other shareholders in the
Bank of Wales (Limited) except the defendants, against
the bank and the directors (13) and solicitors (3),
The bill alleged that in 1862 a joint-stock banking
company, limited, was projected by the name of the
Bank of Wales. By the memorandum of association it
was provided as follows: —
That the registered office of the company is to be tlie
established one in England.
That the objects for which the company is to be esta-
blished are the transaction of every kind of banking
business, &c.
That the nominal capital of the company is 1000/.,
divided into ten shares of 100/. each, to be increased
from time to time, if need be, to an amount not exceeding
2,000,000/., by the creation of 19,990 additional shares
of 100/. each, or of such smaller number of such shares
as may from time to time be deemed expedient. And the
several persons whose addresses were subscribed thereby
declared their desire to be formed into a company, in
pursuance of the said memorandum of association, and
they respectively agreed to take a number of shares in
the capital of the company set opposite to their respec-
tive names.
The memorandum of association is dated the 20th of
October, 1862, and was signed by two of the defendants,
Charles Parke and D. J. Hoare ; by T. Loader, J. Hunt,
CA8ES IN OHANCERY.
315
B. Gregory, E. D. Chattaway, and J. W. Trenery, for 1863.
one share each, and by the said C. Parke, as the solicitor
of the company ; with the said memorandum of associa-
tion were registered articles of association, whereby it
was provided that Table (B) in the Schedule to the Act statemr^i.
of 1856 should not apply to the said company.
The bill then set out certain of the articles, as fol-
lows : —
^^ 7. The board may from time to time increase the ex-
isting capital to any amount, not exceeding 2,000,000/.,
by the creation of any number of new shares of 100/.
each, not exceeding 19,990 in the whole, upon such
terms, and either with or without preference or priority
as regards dividends or otherwise over the shares in the
then existing capital, as the directors deem expedient.
*' 8. Provided that no resolution of the directors for the
creation of any new shares beyond 9990 shares, or for the
creation of any new shares whatever upon any terms
other than those on which the ten shares mentioned in
the 5th article of the memorandum of association have
been issued, shall be valid until it shall have been ratified
and confirmed by a resolution passed by the shareholders
present personally, or by proxy, at a meeting convened
for that purpose, and at which there shall be present
personally thirty or more persons who have been share-
holders for at least three months next previous to such
meeting.
*^ 9. Whenever it has been duly resolved to increase the
capital, the directors shall carry the resolution into eifect,
in such manner as they deem most expedient ; subject,
nevertheless, to the provisions of the statutes and these
presents, and to any special directions (if any) given in
reference thereto by the meeting at which the resolution
of the board may have been ratified and confirmed as
aforesaid*
** 10, Any capital so created shall, except so far as is
T 2
316
CASES IN CHANCERY.
Crosxst
Thb Bank
OP WAL£S«
}^\ otherwise directed by any such special direction, be sub-
ject to these presents, in the same manner as if it had
been part of the original capital.
" IL An application for shares in the company, signed
Statement, by or on behalf of the applicant, and followed by an allot-
ment of any shares thereoi^, shall be deemed to be an
acceptance of such shares within the meaning of these
articles, entitling the company to place the name of the
allottee on the register of shareholders in respect thereof;
and every person who thus or otherwise accepts any share,
and whose name is on the register of shareholders, shaU,
for the purpose of these articles, be a shareholder.
" 29. The board may from time to time, but subject to
the conditions hereinafter mentioned, make such calls
upon the shareholders in respect of all monies unpaid on
their shares as the board think fit, and every shareholder
shall be liable to pay the amount of every call to the
persons and at the time and place appointed by the
board.
" 30. Twenty-one days' notice at the least shall be
given of the time and place appointed by the board for
the payment of every call.
"31, No call shall be made until the expiration of tliree
months from the incorporation of the company, nor shall
any call exceed 51. a share, and at least three months
shall intervene between the time appointed for the pay-
ment of two successive calls.
" 32. A call shall be deemed to have been made at the
time when the resolution authorizing the call was passed,
but no call shall be made beyond the amount of 251 per
share, except by a resolution passed by three-fourths of
the directors, and confirmed by another resolution passed
by a majority of the directors present at the next meeting
of the board.
**' 04. Every shareholder who has been duly registered
for six months previous to any meeting shall be entitled to
CASES IN CHANCERY.
317
vote at 6uch meeting, and shall have one vote in respect
of each and eveiy share held by him, provided that no
single shareholder shall have more than twenty votes.
'^71. The first directors, and any other directors ap-
pointed by the board, shall continue in office until the
ordinary meeting in the month of March, 1864, and until
others are appointed as hereinafter is mentioned.
^' 100. In their management of the business of the com-
pany, the directors, without any further power or autho-
rity from the shareholders, may do the following things,
viz. : —
1. In consideration of the great labour, expenses,
and risk which Charles Parke, one of the persons
who has signed the memorandum and articles of
association, has incurred and been put to in and
relating to the promotion and formation of the
company, and in registering the memorandum and
articles of association thereof, in case and so soon
as the capital of the company shall be increased
to 500,000/. or upwards, and shares to that amount
have been subscribed for and allotted, shall pay to
the said Charles Parke, his executors, administra-
tors, or assigns, the sum of 6000/.
2. They shall also, when and so soon as shares to the
amount of 500,000/. shall have been subscribed for,
pay out of the funds of the company all costs,
charges, and expenses not hereinbefore provided
for, and which shall have been or shall be herein-
after incurred or sustained in or about the esta-
blishment of the company, or the obtaining the
capital, or in any manner in relation thereto."
By articles numbered 138, 139, and 141, Charles Parke
was declared to be first and present solicitor, the defend-
ant Deane John Hoare managing director in London,
and Benjamin Gregory secretary of the company.
The memorandum and articles of association were
1S63.
Croskst
V.
Tbb Bavk
OF Walbs.
Statem$nt.
318
1863.
Croskby
V,
Thb Bank
OP Wales.
Statement,
OASES IN CHANCERY.
registered on the 20th October, 1862, and thereupon a
certificate of incorporation was granted.
By a memorandum indorsed on the memorandum of
association, it was stated that by a resolution dated the
20th January, 1863, the capital of the company was
increased to 1,000,000/. by the creation of 9990 new
shares of 100/. each, similar in every respect to the ten
shares mentioned in the fifth article of the memorandum
of association.
The bill alleged that it did not appear, nor had the
plaintiff been able to ascertain, by whom such resolution
was alleged to have been passed.
The bill then set out the prospectus issued the 22nd
January, 1863, stating the formation of a new company
as follows : —
"'Bank of Wales, Limited.
" Capital 100,000/., in 10,000 shares of 100/. each; first
issue 500,000/., in 6000 shares.
*^ Deposit on application 1/. per share, and on allotment
1/. per share. No call to exceed 5/., and an interval of
not less than three months between each call.
" It is not intended to call up more than 25/. per share.'*
The prospectus set forth at length the names of the
officers of the company, and proceeded thus: —
** The continuous and increasing development, fof
more than half a century, of native wealth in the mines,
the trade, and the agriculture of the principality of Wales,
has by no means been accompanied by a corresponding
expansion of banking accommodation in the district. In
the large towns, as well as the centres of population and
enterprise in the mining counties, there has universally
been felt and expressed the want of a joint-stock bank
for Wales. The present banks which carry on business
in the towns of North and South Wales, more or le»
remote, being restricted in capital and limited in con-
CASES IN CHANCERY.
319
nexion, fail to give that general support^ or to afford that
well-grounded and extensively ramified basis for trading
transactions which the special operations of a well-regu-
lated joint-stock bank can alone secure to its customers.
** N^otiations are pending, and nearly completed, for
the purchase of important private banking concerns in
the principality, and promises have been received of
accounts to be opened with the Bank of Wales, of them-
selves sufficient to establish an extensive and valuable
business. The Bank of Wales will have branches at
Cardiff, Newport, Swansea, Abergavenny, Monmouth,
Merthyr Tidvil, Aberystwith, Bangor, and other impor-
tant towns.
'* The directors have made arrangements by which all
preliminary expenses, legal charges, printing, advertise-
ments, and all other costs whatever up to the allotment
of the shares, shall not exceed the sum of 6000/."
1863.
CaOSKBY
V.
Thb Bank
OF Walbs.
The bill then alleged as follows: —
That ^* upon the faith of the representations contained
in the said prospectus, and particularly that the persons
named therein were to be the directors of the said bank-
ing company, and that the negotiations for the purchase
of the private banking concerns in the principality IJierein
referred to (one of which was stated by the defendants to
be that of Messrs. Crawshay, Bailey, & Co., of Newport,
Monmouthshire) were nearly complete, and that all the
preliminary expenses connected with the said company
prior to its commencing business were not to exceed the
sum of 6000iL, and that the shares then to be issued were
the first shares issued in the said company, and having
no Reason to believe, from the prospectus or otherwise,
that the allottees' of the shares would not have the control
of the company's affairs, the plaintiff applied for 200
shares in the said company, and paid the sum of 200/.,
being the deposit of 1/. per share thereon, to the bankers
of the said company.*'
320
CASES I^' CHANCERY.
1863.
CK08KEY
V.
TBB SAUK
OF Wales.
StatenunU
That two of the defendants^ Wm. Macnaughtan and
John Hackblocky pretend that before the allotment of
shares^ and on the 2nd February they, for the first time,
discovered that^ instead of 6000/. being the mayimnm
amount to be paid for securing the advantages held out
by the said prospectus^ the sum of lO^OOO/. was to be
paid by the Bank of Wales as commission to an agent
for the introducing the private banking concern of
Crawshay, Bailey, and Co. to the Bank of Wales, in
addition to the very large amount required for the good-
will of the said business, and that thereupon the sud
defendants intimated to the other directors that they
would, under the circumstances, retire lirom the position
of directors of the company. The said W. Macnaughtan,
however, attended the allotment on the 2nd February.
The bill alleged that it was well known that the retire-
ment of Macnaughtan and Hackblock would involve the
failure of the negotiations for the purchase of the said
private banking concern, and that a large number of the
applications for shares would, when it was publicly
known, be withdrawn.
Accordingly, and in order to prevent such withdrawal,
the remaining directors determined to meet on the fol-
lowing day, the 3rd of February, and to complete the
allotment before the retirement could become known.
They accordingly met early on the morning of the 3rd,
and proceeded with the allotment; and whilst so proceed-
ing a formal letter from the said defendants William
Macnaughtan and John Hackblock was delivered to the
said defendants the remaining directors, of which the fbl*
lowing is a copy : —
'' To the Board of Directors of the Bank of Wales
(Limited).
** Gentlemen, — We consented to join your Board upon
the condition that the sum of 6,000/. should include all
CASES IX CHANCERY.
preliminary expenses up to the allotment of sliarcs^ and a
prospectus was issued to this effect with our names added
to your list of directors. Finding on the minutes of the
the earlier proceedings an engagement for 10^000/. addi-
tional expenses, which is^ not consistent with our agree-
ment, we retire from your board, and request our names
may be struck out of your circulars and advertisements,
and that our withdrawal from your board may be made
known to the applicants for shares before any allotment
is made.
" We beg herewith to withdraw our applications for
shares, and to request the return of our deposits.
" We are, Gentlemen,
" Your obedient servants,
(Signed) " Wm. Macnaughtax.
"John Hackblock."
321
1863.
Croskbt
r.
The Bank
OF Walb8«
Statement,
The defendants the remaining directors well knew that,
so soon as the said letter should become publicly known,
a great many applications for shares would be withdrawn ;
and it was, therefore, of the utmost importance to them,
in the furtherance of their scheme, that an allotment of
the requisite number of shares should be made before the
same became known. Accordingly, every possible exer-
tion was used to complete such allotment during that day,
and the parties were engaged till two o'clock the follow-
ing morning in completing such allotment, and in filling
up and posting notices thereof to the different applicants,
no one of whom was aware at that time of the retirement
of the said defendants William Macnaughtan and John
Hackblock. No shares were allotted to the last-named
defendants, but the 200 shares for which the plaintifi" had
applied were allotted to him.
^ The letter of the said defendants William Macnaughtan
and John Hackblock appeared in the London newspapers
of the 4th of February, 1833, and thereupon divers per-
sons gave notice to the company of the withdrawal of
322
CASES IN CHANCERY.
1803. their application for shares^ and desired the return of their
CuoaKBT deposit ; and on the following day, the 5th of February,
Thb^Bank ^^^^> ®^^^ persons received from the secretary of the said
OF WALB0. company a letter, of which the following is a copy : —
Statement.
" Bank of Wales (Limited).
"69, Cornhill, London, 5th February, 1863.
" Sir, — I beg to acknowledge the receipt of your letter
of the 4th instant, which has been laid before the Board
of Directors, and I am instructed to state that I have no
power to comply with your request, inasmuch aa the
shares have been allotted in due form.
" I am. Sir, your obedient servant,
" Benjamin Gregory, Secretary.*'
The bill then set forth a letter to Macnaughtan and
Hackblock, from the secretary of the company, in vhich
the latter stated that a negotiation had been opened for
the purchase of a private banking business, said to be
worth 20,000il, and on which the commission was asked
by the agent of|10,000/., but denying that any engagement
for making such payment existed. The secretary offered
to produce the minute-book, and noticed tliat the letter of
resignation was dated the 2nd instead of the 3rd. Messrs.
Macnaughtan and Hackblock sent the following reply t —
" The City Bank, Threadneedle Street,
"London, E.G., February 5, 1863,
'* Bank of Wales (Limited).
" Sir,—
^^ We are not aware that it is necessary for us to notiee
Mr. Benjamin Gregory's letter in your paper of to-day,
except to admit the inaccuracy in the date of our letter of
resignation, inadvertently dated the 2nd instead of the
3rd inst4uit, and which was delivered and read to the
Board of Directors before any allotment was made^
CASES IN CHANCERY.
323
" We beg to hand you herewith one of the prospec- l«08*
tuses issued to the public^ in which you will observe a
clause referring to negotiations pending and nearly com-
pleted. The cause of our resigning, as already stated,
was, that when joining the Board we were not informed Stmtmnent.
that such negotiation could not be completed unless
10,000/. were paid from the funds of the shareholders, and
which * preliminary ' liability left us no other course of
action than that which we adopted.
^* The public is not to understand that the said 10,000/.
was for the purchase of the goodwill of the banking busi-
ness alluded to in the prospectus, but solely as a bonus
to anoUier party for the introduction.
We are. Sir, your obedient servants,
*'Wm. Macnaughtan.
"John Hackblock."
4,955 shares only were alloted in the said company*
The shares numbered respectively 1 to 50 both inclusive
were allotted to one Mr. Prior, and the shares subscribed
for by the said memorandum of association were treated
as non-existing shares. In fact, no shares were allotted
to, or registered in, the names of either of them, the said
Thomas Loader, John Walter Trenery, and Benjamin
Gregory, prior to the Slst of March, 1863, nor were there
prior to that day more than 4,955 shares registered in the
said company, or on which the deposit or any call had
been paid^ The call of 1/. per share was paid by the
plaintiff and other shareholders on allotment, in ignorance
of the fact that the then issue was not the first issue, and
of the special provisions in the Articles of Association*
On or about the Slst day of March, 1863, the name
01 the said Thomas Loader was placed on the share register
as the holder of one share, numbered 4,956, and the said
John Walter Trenery as the holder of another share, num**
324
CASES IN CHAKCERY
1863.
Crosket
V.
The Bank
OF Walks.
Statement,
bered, 4,957, and the said Benjamin Gregory, the secre-
tary of the said company, as the holder of forty-three
shares, numbered respectively 4,958 to 5,000, both in-
clusive, although neither of the said parties had applied
for shai'es previous to the allotment, or paid any deposit ;
and the plaintiff shows that their names were placed on
the share register, not as the bond fide holders of the said
shares, but merely as trustees for the defendants, from
whom they had received an indemnity, and in order to
give an appearance of legality to the illegal proceedings
of the defendants ; and in furtherance of this scheme the
plaintiff shows that it is made to appear by the share
register that such shares were registered in the respec-
tive names of the said parties on the said 3rd day of Feb-
ruary, 1863. At the time the aforesaid shares were re-
gistered in the names of the said Thomas Loader, John
Trenery, and Benjamin Gregory, the market price of
shares in the said company was 5s. per share, or 1| dis-
count.
Previous to the issue of the last-mentioned shares,
and whilst the number of shares on the register and alloted
only amounted to 4,955, the defendants the remaning di-
rectors of the said company paid out of the moneys of the
said company to the defendant Charles Parke, and also to
the defendants Alexander Crosley and William Burn, who,
by virtue of some arrangement between the said last-men-
tioned three defendants, had, as between themselves, become
interested therein, the sum of 6000/., by way of promotion-
money, and for costs and expenses in reference to the getting
up of the said bank, without any bill of costs having ever
been delivered by the said defendant Charles Parke, or
any statement showing how the said sum was made up ;
and the plaintiff shows that in fact all the costs, charges,
and expenses connected with the fonuation of the said
company could not and did not exceed the sum of 500/. ;
and the plaintiff charges that he applied for shares in the
C.VSES IN CHANCERY.
?r2Z
said company on the faith of the said representation in the
said prospectus that all the preliminary expenses connected
with the formation of the said company, including the
purchase of the private banking concerns therein referred
to, should not exceed the sum of 6000Z.
The plaintiff charges that such payment to the said
defendants Charles Parke, Alexander Crosley,and William
Burn was a fraud upon the shareholders in the said
company, and that all the defendants hereto were fully
aware of the circumstances and parties to such fraud, and
they ought respectively to be ordered and decreed to re-
pay the said amount with interest thereon. The plain-
tiff also charges that an arrangement existed between the
said defendant Deane John Hoare and the said defend-
ant Charles Parke, by virtue of which the said defendant
Deane John Hoare was also interested in the said sum
of 6000/., and the said last-named defendant has in fact
received sind been paid part thereof; and the plaintiff
charges that it was in order to secure such amount that
the allotment of shares in the said company was hurried
on and completed before the withdrawal of the said de-
fendants Messrs. William Macnaughtan and John Hack-
block became publicly known. The said defendant Deane
Jolrn Hoare was chairman of the board during the allot-
ment, and signed the same.
The defendants the directors of the said company, on
the 17th day of March, 1863, assumed to make a further
call of f)L per share, payable on the 30th day of April in-
stant. A great many dealings in the shares [of the said
company had taken place previously to the said 17th of
March, and the settlement in respect of such shares was
then proceeding. By the rules of the Stock Exchange,
whenever a call is made in respect of any shares previous
to a transfer, the vendor is entitled immediately to pay
such call without questioning its legality, and although it
may not be actually payable for some time thereafter.
1S03.
Croskby
p.
Tub Bahk
OF Wales.
Statemunt,
326 CASES IN CHANCERY.
^^\ Previous to the date of the said eecond call, some of the
Croskby defendants the directors had sold shares in the said com-
Thb Bakk P*^y *t ^ premium of 2/. or more. The result of making
OP walbs. auch call pending the settlement of the account on the
statefnent. Stock Exchange was not only to secure payment in ad-
vance of a large amount in anticipation of the call, but
also to depreciate the shares in the market, and enable
the directors of the company, and other vendors of shares,
to buy them back at a reduced price, or receive a large
transfer difference ; and the plaintiif charges that in &ci
some of the defendants the directors who had sold shares
at a premium of 21 per share and upwards, actually pur-
chased them back at a discount of H per share.
The plaintiff charges that one of the private bank*
ing concerns referred to in the said prospectus was a long-
established and valuable business, and, although not spe-
cifically named in the said prospectus, the directors had
caused it to be extensively known that it was the business
of Messrs. Crawshay, Bailey, & Company, of Newport,
and it was upon the faith of such representation, and of
the representation in the prospectus that the company
was formed to take up generally private banking con-
cerns, the negotiations for the purchase of which were
nearly complete, that the plaintiif was induced to apply
for and become the purchaser of shares in the company.
The plaintiff charges that the aforesaid statement of
the said prospectus is altogether untrue, and was so to
the knowledge of the defendants at the time it was
issued, and that the only negotiation, if any, ever open
with the said company for the purchase of private bank-
ing concerns was that for the purchase of the business of
of Messrs. Crawshay, Bailey, & Company, and that such
negotiation, if ever opened, had proceeded but a very
little way, and ultimately went off, and it could never
have been truthfiilly said that the negotiations for its
purchase were nearly complete.
CASES IN CHANCERY.
327
Instead of purchasing private banking concerns,
the said company now threaten and intend to waste the
assets of the comimny in the establishment of rival bank-
ing concerns in the same towns in whioh such private
banks are established.
Immediately on the issuing of the said prospectus
containing the representations aforesaid, and in full belief
of the truthfulness of such representations, the shares in
the siud company became very popular, and were at a
considerable premium before the allotment took place, and
the plaintiiT, and divers other persons, in addition to the
shares whioh they applied to have allotted to them, pur-
chased shares in the company at a premium. Such
shares were purchased for the first settling-day which the
committee of the Stock Exchange might appoint ; and
the plaintiff and the other purchasers were bound to com-
plete their purchases on such settling-day, notwithstand-
ing any intervening circumstances. All the defendants
hereto well knew of the purchase of such shares at the
time the same was made, and some of the said defendants
themselves sold shares in the said company at a consider-
able premium before the allotment had taken place.
On or about the 17th of April, 1863, the allottees
of shares in respect of which the second call had not been
pud, under the circumstances aforesaid, received a cir-
cular letter, signed by the secretary of the said company,
announcing that the directors had' resolved that the 2/.
paid on deposit and allotment should be credited as in
part payment of the call of 5/. per share due on the 30th
instant. Some holders of shares in the satd company on
which the call of 51. had been paid, under the circum-
stanoes aforesaid, thereupon applied for a return of 21.
per share ; but the defendants declined to comply with
their request.
At the time the aforesaid second call was made.
1863.
Croscbt
V.
Trb Bank
or Walbs.
Staienwnt,
:V2S
CASI':S IX CHANCERY.
CllOSKBY
V,
Thk Baxk
OF WAMiS.
180.5. notliing had been paid by any of the subscribers to the
said memorandum of Association ; nor was any call made
on them^ or either of them^ in respect of the shares which
they thereby agreed to take, nor on the forty-five shares
Statement, in the said company which remained unallotted.
The plaintiff charges that all the defendants hare
been guilty of such acts of misrepresentation and sup-
pression as entitle him, and the other shareholders in the
Company, to a return of the amount paid by them re-
spectively, and to be relieved from all further liability in
connection with the said company.
The plaintiff charges that under the circumstances
hereinbefore stated, neither the call of 51. nor of 31 per
share was legally made, and that the defendants ought to
be restrained from enforcing or receiving the same.
The plaintiff charges that many other of the acta
and proceedings of the said defendants, in reference to the
said company were unauthorised and illegal, and that the
defendants William Macnaughtan and John Hackblock,
having received the plaintifTs deposit, and having been
parties to the aforesaid misrepresentations and suppres-
sions, are liable, notwithstanding their subsequent witli-
drawal from the direction, to make good the loss occa-
sioned by such misrepresentations and suppressions.
The defendants, or some of them, tlireatened to
enforce the aforesaid second call, unless they shall be re-
strained from so doing by the order and injunction of
this Honourable Court.
The plaintiff prayed as follows : —
<^ 1. That it may be declared that the defendants were
guilty of misrepresentation and suppression as to entitle
the plaintiff, and all the other persons who have paid
money on the faith of such misrepresentation, and in ig-
norance of suppression, to a repayment thereof, and that
all the defendants may be declared liable to repay such
amounts respectively.
CASES IN CHANCERY,
329
CftOtXEY
Thb Bank
OV WALB9.
" 2. That it may be declared that the aforesaid call of 1M3*
5/. or 3L per share was and is illegal and void, and that
the defendants may be restrained from enforcing or re-
ceiving the same, or firom declaring the forfeiture of any
share by reason of the non-payment of such call, and statement.
that the defendants the directors may be decreed to re-
pay the amount already received by them on account of
such call.
^^ 3. That the defendants may be restrained from 02>ening
or establishing any banking business in competition with
the private banking concerns referred to in the prospectus,
and upon the faith of the purchase of which for tlie said
company, and the carrying on of which by the said com-
pany, the plaintiff and others were induced to become
shareholders therein.
" 4. That the defendants may be decreed to repay the
said sum of 6000/., with interest thereon."
The Solicitor-General and Mr. Roxburgh^ for the de-
fendants, opened the demurrer, but were stopped by the
Court.
A rgument.
Mr. Malins and Mr. fV. Morris fpr the plaintiff.
It was sufficient to support this bill if the plaintiff were
entitled to any relief or discovery. It was quite clear
that the payment of the 6000/. without a previous investi-
gation of the claim was improper ; or, at all events, the
100th article proved that so soon as shares to the amount
of 500,000/. had been allotted, it should be lawful for the
directors;to pay 6000/. to the said C. Parke ; but the bill
Alleged, and the demurrer admitted, that no such amount
had ever been subscribed for. Again: the bill alleged
that there had been misrepresentation and suppression of
facts, which entitled the plaintiff to relief.
VOL. IV. Z
330
CASES IN CHANCERY.
Croskbt
Tbb Bahk
ov Walsb.
Judgmint,
The Vice*Chakcellob : —
This bill is filed by one shareholder^ who affects to sue
on behalf of himself and all the other shareholders except
the defendants. He sues the corporation itself and other
individuals named, who are directors, and says that one
of them has improperly received a sum of money which
belongs to the corporation. The first part of the relief
prayed is upon the ground of general misrepresentation
and suppression by the defendants, and the pluntiff saji
that he and all other shareholders who have paid their
money upon such misrepresentation and such suppression
are entitled to the repayment of the money.
But the plaintiff has no right to maintain a suit for
such a purpose. In Jones v. Garcia del Rio (a). Lord
Eldon said that a case of fraud alleged under such cir-
cumstances amounted to a distinct and separate ground of
complaint in equity for each shareholder. At page 301
Lord Eldon said, ''that the plaintiffs in that case, if
they had any demand at all, had each a demand at law,
and each a several demand in equity ; that they could not
file a bill on behalf of themselves and the other holders of
scrip ; and, as they were unable to do that, they could
not, having three distinct demands, file one bill." The
first part of the relief prayed therefore, fell clearly within
the principle of Jones v. Garcia del Rio, Lord Eldon
said, moreover, that in a case of this kind each party has
a separate demand in equity, and that no one is entitled,
in a general way, to appear for himself and to represent
the other shareholders, or to come forward and complain
in that character of an injury which is a separate injury.
The next part of the relief prayed is in respect of an
alleged illegal demand in the shape of a call of 3/. or 5/.
This is a question of construction as to what a call is, and
(n) T. & Russ. 297.
GASES IN CHANC£BT«
here it is as pl^in as language can show that by the me-
morandum of association, which is the contract between
the parties, and the prospectus, there is a difference made
between a payment on deposit, a payment on allotment,
and a call. This is pointedly noticed by the fifteenth
allegation in the bill. A call is a thing which cannot be
made until shares have been alloted. If the bill had not
pointed out this diiFerence, the objection taken would be
fatal to this part of the plaintilTs case ; and the bill could
not be sustained upon that ground even if it were not
coYered by the decision in Jones v. Garcia del Rio,
The next ground is more extraordinary than the others.
The bill seeks to restrain the defendants from opening
banking establishments in competition with the private
banking concerns referred to in the prospectus. But this
part of the case is completely contradicted by the lan-
guage of the prospectus, for the whole purpose of the
formation of this corporation — ^a large banking concern —
was to establish banking establishments in various parts
of Wales. To say that that purpose is not to be carried
into effect because the bank will come into competition
with private banks in Wales, is something like nonsense.
It is said that the directors represented to various
parties that what was meant by establishing banks in
Wales, although it was not set forth in the prospectus,
was the purchase of the establishment of Crawshay,
Buley, & Co. in some particular town« There is no
warrant for that, and this part of the case is so wholly
inconsistent with the prospectus, and with anything
that is feasible in the other statements of the bill, that
I have been unable to follow the arguments pressed
by the counsel for the plaintiff. Mr. Malins took his
ground upon the alleged wrongful payment of the 6000/.
The bill prays that this sum may be ordered to be repaid,
but it does not say to whom it should be repaid. The
memorandum of association in express terms authorise^
Z 2
831
1803.
Grobkbt
V.
THB &A1IK
OF Walks.
Judgmant^
332
CASES IN CHANCERY.
Idas.
CftOBXBT
V.
Tbb Bank
ov Walbs.
Judgment »
the directors^ without further warrant or authority,
when a sufficient allotment of shares has been made, to
pay a gross sum of 6000/. to Charles Parke, his execu-
tors, administrators, and assigns. Now, as to the allot-
ment of shares, the 12 th paragraph of the bill complains
that the directors precipitately on the 3rd February allotted
the shares, but the statement is very confiised when read
in connection with other statements that the directors did
not allot 5000 shares, but only 4955. But, in reference
to the allegations in the bill, that the directors allotted
forty-five shares in the manner mentioned in the I6tli
paragraph, in order to give an appearance of legality to
their proceedings, I can find nothing to justify the state-
ments of the plaintiff^, nor can I say that he or any other
person is entitled to any relief in respect of the 60Q0L
The plaintiff^ endeavours to make out a case that the
6000/. was wrongly paid, not because paid too soon, but
because no bill of costs had ever been delivered. The di-
rection in the memorandum of association is that this
6000/. shall be paid by the directors, without any further
power or authority from the shareholders, as a gross msL
Upon that ground of complaint the bill also fails.
What remains of the bill consists of statements imput-
ing misrepresentation and fraud, but there is no distinct
statement to show in what such fraud and misrepresenta-
tion consisted, which, when charged, ought to be set forth
in particular allegations. The demurrer must be allowed
with costs.
His Honour refused leave to amend.
CASES IN CHANCERY. 333
186S
THE ATTORNEY-GENERAL v. THE -v^
TEWKESBURY AND MALVERN RAILWAY March id.
COMPANY.
1 HIS was an injunction filed on the relation of Archdea- Where the
con Timbrill, one of the trustees under the 7 Geo. 4, c III. Sow fop^thlT*
being an Act for maintaining certain roads into and from *?°*?2d*^"
the town of Tewkesbury towards Gloucester and Wor- over a pubUc
cester^ and prayed that the company might be restrained scribed the
from erecting or building any bridge over the road men- pj^^°^ *^*
tioned in the pleadings so as to leave a less width than ^^^^S" »
^ gn n . , . * 1 ^ forty-five feet,
forty-five feet^ or except m accordance with the plans theCoort
and sections so deposited as aforesidd. The bill stated Se*com^y
the constitution of the turnpike trust, and that, by virtue ^^^^'^
of the ix>wers and authorities in that behalf contained said bridge
in the said Acts of Parliament, the land forming the ^^nce
north-western side of the turnpike road hereinafter men- ^^g*''*^
tioned for a considerable distance along its course, and sections so
including the whole site of the excavation made by the The isth
defendants, as hereinafter stated, was in the year 1833 SSw^y*^'^®
purchased for and appropriated to, the purpose of widen- ^j*"?** ^^^>
ing the said turnpike road, and thereby improving the provides
entrance to the town of Tewkesbury into which it leads, in any pi^e
and the said land is now vested in the said trustees so 1* *• intended
to carry the
appointed as aforesaid. railway on an
The bill then alleged that by the Tewkesbury and orbyaviaductl
Malvern Act, 1860, incorporating the Lands Clauses "e^Unfand
and Railways Clauses Consolidation Acts, the company sections, the
•^ '^ " —•»') shall be
were empowered to make the line of railway. That by made aceord-
section 28 it was enacted, " that, subject to the powers lcllJiiin^*'to *'
and provisions in that Act and the Acts incorporated "'^^j^^q^
therewith, the company might make and maintain the
railway and works on the line and upon the lands de-
334
CASES IN CHANCERY.
1863.
The
Attorn EY-
Genb^al
V.
Tbb
Tewxbs-
BVRT AHiy
Maltern
Railwat
Company.
Statement*
lineated on the plans and described in the books of refe-
rence so deposited as aforesaid^ and according to the
levels defined on the said sections^ and might enter upon,
take^ and use such of the said lands as should be neces-
sary for such purpose."
" Under the powers contained in that behalf in the
said * Tewkesbury and Malvern Railway Act, I860,'
and in the Acts therein incorporated as aforesud, the
defendants commenced and have for some time past been
proceeding with the construction of their said railwaji
and in the course of such construction they intend to
Garry their said railway by a bridge over and across a
turnpike road leading from the town of Tewkesbury
towards Bredon and Pershore, at a point within the parish
and borough of Tewkesbury.
*^ The said turnpike road consists of a carriage road
and a raised footpath, and at the point at which it is
intended to cross it by the said bridge, at the centre line
of the said bridge, the said road is of the width of forty-
three feet, or thereabouts, the carriage road being of the
width of thirty-seven feet, or thereabouts, and the foot-
path of six feet or thereabouts.
<^ The plans and sections deposited by the defendants
previously to their obtaining their said Act of Parlia-
ment, and which plans and sections are therein referred
to, show that the said turnpike road at the point in que»>
tion is to be crossed by the defendants' said railway upon
one arch of forty-five feet span, such span being the
necessary span for the purpose of preserving undimi^
nished the width of the said turnpike road*
** In the month of November last, Mr< Anstie, one
of the assistant-engineers of the said company, and on
behalf of the siud company, attended a meeting of tlie
said trustees, and requested from them permissioii to ntf^
row the span of the proposed bridge to thirty-five ftet,
and to erect one of the piers for the aapport theitof od
CASES IN CHANCERY.
the north-west side of and upon the said turnpike road,
and to encroach upon the said turnpike road for that pur-
pose, but the said trustees after considering the matter
unanimously refused to give the desired per mission.
''On the 9th day of January last, or thereabouts,
and without any further communication with the trus-
tees, the engineers or contractors of the said company
commenced to break up the said turnpike road, and to
make excavations in the said road for the foundation of
the said pier, and on the 10th day of January, the sud
Mr. Anstie, in answer to a remonstrance made to him on
the subject, stated that the works were being done by
his directions, under the orders of Mr. Hemans, the
chief engines of the said company, and that the effect
of the works when completed would be to leave a clear
width of thirty-five feet for the carriage road and foot-
path, which width was all that Mr. Hemans considered
necessary, and all that the public were entitled to«
** On the 12th day of January, 1863, Messrs. C. W.
Moore and L. W. Lewis, who are the clerks of the
said trustees, and on th^ir behalf, wrote and caused to be
on the same day served on the said Mr. Anstie, and also
on the sub-contractor for the said works, and on the fol-
lowing day to be served on the Secretary of the defen-
dants* said company, a notice in writing, which was as
follows (that is to say) : —
336
1868.
Thb
Attormbt*
Qbmbral
Thb
TawKBs-
BCBT AVO
Malybrii
Railway
COXPABT.
Siatmntnt.
^ To the Tewkesbury and Malvern Bailway Compay, and
to their engineers and contractors, and to all other
persons concerned*
Whereas by the Tewkesbury and Malvern Railway
Act, I86O5 your said company are authorized to
construct a line of ridlway and works in accord-
ance with certain deposited plans and sections in
the said Act referred to, and which plans and sec-
tions (as also the Parliamentary notice given by
336
CASES IN CHANCERY.
1663.
Thb
Attorney-
Gbneral
V.
The
Tewkes-
bury AND
Malvern
Railway
Company.
Statmnent,
the promoters of the said railway to the after-
mentioned trustees) show that it was intended to
carry the said railway over the turnpike road,
leading from the town of Tewkesbury towards
Bredon^ by a bridge, to consist of one arch ot
forty-five feet span, and sixteen feet high. And
whereas, at a meeting of the trustees of the sud
turnpike road, held on the 14th day of November
last, you, or some of you, by Mr. John Anstie,
one of the engineers of the said company, applied
to said trustees for permission to reduce the span oi
the said intended arch from forty-five to thirty-
five feet, and for that purpose to build the north-
western pier of the said intended bridge upon part
of the said turnpike road, but which permission
was unanimously refused by the said trustees.
And whereas, in spite of such refusal, you, or
some of you, are illegally proceeding to erect the
said bridge of a less span than is specified on the
said plans and sections, and for that purpose have
already encroached on the said turnpike road, and
made an excavation therein for the foundations of
the said intended pier, and erected a line of posts
and rails on the said road, and by such encroach-
ments, have reduced the width of the said turn-
pike road available for the passage of carriages to
thirty feet, or thereabout. Now, therefore, wc
the undersigned Charles William Moore and
Lauriston Winterbotham Lewis, as the clerks to
the sud trustees, and on their behalf and by their
authority, do hereby give you notice and require
you and every of you forthwith to desist from the
illegal prosecution of the said works, and not in
any manner to deviate from the said plans and
sections so as to encroach upon or interfere with
the free use and enjoyment of the said turnpike
CASES IN CHANCERY.
337
road, and also forthwith to remove the said i)08td
and railsy and to fill up the said excayation, and
effectually to restore the said turnpike road to its
former state and condition, except in so far (if at
all) as such road may be necessarily encroached
upon by a bridge of the character and span shown
on the said plans and sections, and also to pay
and satisfy to the said trustees all costs, charges,
and expenses incurred or sustained by reason or
in consequence of such your illegal proceedings.
And we give you and every of you further notice,
that unless you shall forthwith comply with the
foregoing requirements, the said trustees will take
such proceedings, by action at law, a bill in Chan-
cery, indictment, or otherwise, against you and
every or any of you, as counsel may advise, for
preventing the illegal prosecution of the said
works or procuring the removal thereof, if per-
sisted in, and for obtaining compensation for any
loss or injury thereby occasioned, and for punish-
ing all persons offending in the premises. Dated
the 12th day of January, 1863.
* (Signed) Charles W. Moore.
Lauriston W. Lewis.'
'^ Shortly after the said notice was sent to the defend-
ants, their engineer proposed a meeting with some of the
trustees, which meeting took place on the 19th day of
January, 1868, and was attended by Mr. Holland, the
company's solicitor, and Mr. Hemans, their chief engineer,
and several other persons engaged in the construction of
the said nulway. The said interview, however, ended by
the said Mr. Hemans insisting on the right of the defend-
ants to proceed as they had begun, which he intimated
they would do, and leave the trustees to apply for an
injunction if they chose."
The trustees thereupon held a meeting, at which it
1S63.
Thb
Attorket-
Gbkbeal
V,
Thb
Tbwkes-
BURT AND
Malt BR N
Railway
Company.
Statement.
338
CASES IN CHANCERY.
1863.
Tbb
Attorwet-
Obneral
V,
The
Tewkes-
bury AND
MALYBRir
Railway
Company.
Statement.
was unanimously agreed to apply for an injunction to the
Court of Chancery.
The bill contained the following allegations, which
were proved by affidavit : —
'^ 14. The excavation in the said turnpike road, made
by the defendants, for the foundation of the pier so pro-
posed to be made by them as aforesaid, is fifty-eight feet
long, and varies in width from four to seven feet, and at
its point of greatest encroachment extends into the said
road so as to diminish the width thereof by the space of
eleven feet or thereabouts ; and outside of the said exca-
vation, and further into and upon the said road, the
defendants have carried a line of posts and rails, which
further diminishes the width of the said road, and reduces
the width thereof available to the public for the passage
of carriages to twenty-three feet or thereabouts.
** 15. The result of the defendants' said works, if car-
ried on in the manner proposed and commenced by them,
will be to effect a permanent encroachment on the sud
road to the extent of ten feet, or thereabouts, and a per*
manent reduction of the width available for the passage
of carriages to twenty-nine feet, or thereabouts.
^^ 16. The defendants allege and insist that they are at
liberty, under the provisions of * The Tewkesbury and
Malvern Railway Act, I860,' as aforesaid, to make the
said bridge of a span of only thirty-five feet, the effect of
which will be to allow permanently thirty-five feet only
for the combined width both of the carriage and footway*
<< 17. The said turnpike road is much used by the
public, and the point of such proposed crossing, as afore*
Baid, is at or close to the entrance of the town of Tewkes*
bury, and the present condition of the sud road arising
from such excavation, posts, and rails, aa afor«aaid, is, and
the pennanent abridgment of the width of the said nmi
by building the said bridge as proposed hy the defen«
dants contrary to the plans and seelions so deposited by
CASES IN CHANCERY
33»
them as aforesaid^ will, if permitted, be an inconvenience
and injury to the public.
'' 18. The said trustees of the said road, and the plain-
tiff who represents them in this suit, have also an indi-
vidual interest and duty to maintain the said road in good
repair, and of undiminished width and accommodation,
and by the wrongful acts of the defendants herein stated
the said trustees have sustained considerable damage and
expense, by reason of the necessity of employing sur-
veyors, and otherwise ascertaining and resisting the
encroachments of the defendants.
** 19. The informant and plaintiff are advised and
submit that the proceedings of the defendants in exca-
vating and obstructing the said road in manner aforesaid
are unauthorized and illegal, but the defendants refuse to
alter their course of procedure, and threaten and intend
to proceed with their said bridge and works in the manner
in which the same have been commenced, and have
recently signified their intention to apply to the Board of
Trade to decide upon the question at issue. '
**21. The defendants have lately set out and been
building the other or south-eastern pier of the said bridge,
and, notwithstanding they were cautioned on the subject
by the surveyor of the said trustees, the defendants have
persisted in building the same, so that, as the said trus«>
tees have recently discovered, the brickwork of the last,
mentioned pier encroaches into the footpath of the said
turnpike road to the extent of nine inches or there*
abouts, and thereby the width of the said footpath is
ireduced to five feet, one inch, or thereabouts, and a fur-
ther diminution over and above the diminution resulting
from the matters hereinbefore stated is made in the total
width of the said road.*'
1869.
Stat$ment»
Mr. Malini and Mr. Millar now moved fot an ii\)unc*
tion in the terms of the prayer of the bilh
Ardument*
340
1863.
The
Attornbt-
Gbnbbal
V,
Thb
TswrBS-
DtjRT AND
Malybric
Railway
COUPANT,
Argument*
CASES IN CHANCERY.
The railway company are bound by tlie plans and sec-
tions deposited, which was the only guide that Parlia-
ment or the public could have as to the proposed works.
If a railway company were at liberty to depart from the
l)lans, there would be no certainty as to their powers. If
they could make a road ten feet less than that designated
by the plan, why not twenty feet less ? The argument
did not apply to roads and bridges only, but to all the
works which a company were authorized to do- To
allow them, therefore, to vary from their plans was to
give them powers beyond those given by the Legislature.
But, secondly, it was submitted that the language of
tlie 13th section of the Railway Clauses Act was ex-
press : the words were, *^ that where it is intended to
carry the railway by a viaduct, as marked on the plans
and sections, the same shall be made accordingly." That
is, according to such plans and sections.
It was submitted, therefore, that the plaintiff was
entitled to the injunction.
Mr. Bacon and Mr. Dryden for the company. — The word
" accordingly" meant, " in pursuance of the power con-
ferred,*'and was not intended to prescribe any precise mode
of exercising such power. There was a general enactment
applicable to the construction of viaducts over turnpike
roads in the 49th section of the Railway Clauses Act,
with which this 13th section did not intend to interfere.
That was, that every viaduct over a turnpike road should
leave a space of thirty-five feet : that is what the com-
pany proposed to do here. No special case had been
made on the passing of this Act for a greater span than
usual, nor indeed was any such now made by the bill :
the Legislature never could have intended such an
unmeaning thing, as, without any reason being assigned
for it, to override the general rule laid down in the 49th
section. It was submitted that the motion must be
refused.
CASES IN CHANCERY.
341
The VICE-CHANCELLOR: —
In construing the Act of Parliament^ the deposited
plans and sections to which the Act refers must also be
looked to. The railway company^ according to their
deposited plans and sections^ describe the breadth of the
bridge to be forty-five feet. The 13th section of the
Railway Clauses Act says, " That where in any place
it is intended to carry the railway on an arch or arches,
or by a viaduct, as marked on the plans and sections, the
same shall be made accordingly.'^'* The word " accordingly"
seems to me to mean, '^according to the plans and sections,''
and I cannot say, upon the construction of those words,
that, if the plans and sections describe a bridge as being
of the width of forty-five feet, the work is made according
to those plans and sections if it is made only thirty-five
feet in breadth. If I had any doubt about that, I think
it would be removed by the 14th section, which imme-
diately follows, which gives power to the company in
certain cases to alter or deviate from what is described
in the plans and sections. The 14th section says : ^^ It
shall not be lawful for the company to deviate from or
alter the gradients, curves, tunnels, or other engineering
works described in the plans and sections, except within
certain limits therein specified." It seems impossible to say
that a bridge is not an engineering work as described in
the plans and sections, and, unless under this power to
alter what is described in the plans and sections a power
is found to alter the dimensions from forty-five feet to
thirty-five feet, there is no power to make an alteration
in the mode of construction that is pointed out in the plans
and sections at all. It is said, however, that the 49th sec-
tions applies directly to this case, because the 49th section
says what shall be the breadth of every bridge to be
erected for carrying a railway over any road, and there it
is provided that the breadth shall in no case be less than
thirty-five feet. That seems to be very plain language.
1863.
Thb
Attormby-
Gbhkbal
V.
Thb
Tbwkeb-
BDRY AMD
Malybrn
Railway
COXPAKY.
Judffmefii.
U2
CASES IN CHANCERY.
1868.
Attorvbt-
Obnbral
V,
Tub
Tbwkbs-
BURY AND
Maltbrn
Railway
C0XPAMY«
JudgmcnU
If the deposited plans and sections had said that the
breadth should be thirty-five feet, that would be within
the provisions of the Act of Parliament ; but when the
deposited plans and sections state that it shall be more
than thirty-five feet — that is, that it should be forty-five
feet — it has been gravely argued that saying that ^^it shall
not be less than thirty-five feet" means that " it shall not
be more." The information is filed by the Attorney-
General in a matter that concerns the public The
proper breadth and the proper dimensions, with regard to
a public road, are matters of public concern; and I think
the railway company, when they deposited their plans
and sections, showed a very just regard for the public
interest when they described that the breadth would be
forty-five feet: and they have no power, in my opinion,
according to the construction of the Act of Parliament,
to deviate &om that. I must, therefore, by the injunc-
tion of this Courts restrain them from doing so. The
injunction must be in the terms of the prayer of the bill.
CASES IN CHANCERY. 343
1808.
WILLIAMS V. COOKE. March 17.
X HIS suit was instituted to administer the estate of Where a mar-
!Uchard Davies, the testator in the oause^ who prior to who prior to
his decease deposited with his niece E. A. Davies^ now wwTnSSed*
Mrs. Cooke, the title deeds of certain real property at binder a wui
to a debt pay-
Shrewsbury^ in order to secure a sum of 442/. due by able after the
!• A V* 'I • death of her
him to his said niece. gi,jep, secured
The testator, by his will, dated the 19th April, 1844, on land by the
^ . It deposit of title
devised the same messuage and premises, and all other deeds, by deed
his real estate whatsoever and wheresoever, and all his jISinedTher^
personal estate, to his sister Mary Eleanor Davies ^"^fn^-^Sgp
(whom he also appointed his sole executrix) for life, share and
. . interest in the
*' freed and discharged during her life from the payment said debt,
of the debt or sum of 442/. then due and owing by him ^^ geciSty,
to his niece Elizabeth Abigail Davies," and interest at in order to
^ secure monies
4^ per cent 5 and also freed and discharged from another due by her
debt of 105/. 10«. 6</., then due to his said sister, and Heid,inl%\^i
interest, but subject to the payment of all his other debts ^ *tl^^?8
and funeral and testamentary expenses ; it being his will ^^^^9 that
•^ ^ ^ , she was not
that she should enjoy the rents and income of his real eotiUed to a
and personal estate without any deduction in respect of J^t*oTthe'
the said two debts ; and from and after the death of his P«>ceed8 of
' , , , the real estate.
sister he gave and devised his said messuage or dwelling-
house to Peter Beck and the said Elizabeth Abigail
Davies, their heirs and assigns, upon trust, by sale or
mortgage of the premises or otherwise, to raise such
sums as they should think necessary to pay and discharge
the said debts and interest, and also the further sum of
100^, which he bequeathed to his said niece, and subject
thereto upon trust for the said Elizabeth Abigail Davies
and fiye other persons in equal shares, as tenatits in com-
344
CASES IN CHANCERY.
Id63.
Williams
V.
Cooke.
Siatetneni,
mon ; with remainder, as to two of the shareB, in the
event of the devisees dyin<r under twenty-one without
issue, to his said niece Elizabeth Abigail Davies, her
heirs and assigns. Testator also bequeathed all his per-
sonal estate, after the death of his sister, to his siud
niece Elizabeth Abigail Davies. It was also provided
that the persons to whom the said two first-mentioned
debts were due should not, during the lifetime of his
sister, under penalty of forfeiting all benefit under the
will, enforce payment thereof until after his sister's
death, and that no interest should be paid thereon during
the life of his said sister ; also every gift to a female
should be for her sole and separate use.
The testator died in September, 1847. E. A. Davies,
previously to his death, intermarried with Joseph Cooke.
The usual administration decree was made to administer
the testator's estate.
By an indenture, dated the 14th March, 1851, made
between Mr. and Mrs. Cooke, of the first part ; and
Messrs. Kocke & Co., bankers, of Shrewsbury, of the
second part (which deed was executed, but not acknow-
ledged by Mrs. Cooke), Mr. and Mrs. Cooke assigned
two policies of assurance, and the said debts of 442/. and
105/. \0s. 6d. and interest, and the said legacy of 100/.,
to the Messrs. Rocke to secure advances by them, or the
overdrawn balance of Mr. Cooke's current account to the
extent of 1000/. ; and by another indenture indorsed on
the former, dated the 9th February, 1856, and made
between Joseph Cooke alone of the first part, and the
Messrs. Kocke of the second part, the security was
extended to the sum of 2000/.
By another deed, dated the 13th February, 1856, and
made between Mrs. Cooke of the first part, Joseph
Cooke of the second part, and the Messrs. Hocke of
the third part (which deed was acknoi^ledged by Mrs
Cook), after reciting that it had been intended that the
CASES IN CHANCERY.
shares of Mrs. Cooke> under the ivlU should be included
in the above-mentioned securitiesi but an appointment
thereof, and also her concurrence in the secondly men-
tioned deed, had been omitted by mistake ; all the shares
and interest of Mrs. Cooke in the said dwelling-house
and real estate, and generally under the will, were con-
veyed to the Messrs. Bocke upon the trusts of the pre-
ceding indentures.
Mary Eleanor Davies, the testator's sister, died on the
4th January, 1859.
The real estate consisted of the property at Shrews-
bury, which was sold for 1205/., and paid into court.
There was no personal estate.
The chief clerk certified the only incumbrance affecting
the real estate was the debt of 442/. lOs. due to Messrs.
Bocke, *^ as assignees of a debt which was secured by the
testator to the said Elizabeth A. Cooke before her mar-
riage by a deposit of deeds relating to the said testator's
real estate," with interest, making together 486/. 14^. 9d.
" The said deeds had been handed over to the defendants,
Messrs. Rocke, at the date of the indenture, dated the
14th of March, 1841."
Mr. and Mrs. Cooke took out a summons to vary the
chief clerk's certificate, which was adjourned into court.
345
1809.
Williams
V.
COOKB.
Statmm§nt*
Mr. Malins and Mr. Caldecott now appeared on the Argument.
adjourned summons, and moved to vary the certificate. .
They contended that the testator's will had made the
payment of this debt a reversionary interest, and it was
secured on land; but, if so, it was clear a chose in action
of a married woman could not be assigned, and therefore
did not pass under either the deed of 1851 or of 1856.
The debt was charged upon real estate ; but the interest
of the married woman therein was not such as she could
have disposed of before the Fines and Kecoveries Act,
by means of a fine to a stranger, though she might have
VOL. IV. A A
346
V.
COOI^B.
CASKS IN CHANCERY.
released it by fine to a person having an ^tate in the
land. If so, she could not now pass it by deed acknow-
ledged, and was entitled to a settlement out of it In
Ilobby y, Collins (or), in an almost similar case it was held
doubtful whether a married woman could affect her re-
versionary interest in the money charged on land.
Mr. Craig and Mr. Kenyan^ for Messrs. Rocke, the
bankers^ contended that all Mrs. Cooke's interest passed
by the deed of 1856 ; secondly, Mrs, Cooke had elected
to giye up her rights as a creditor and take the interest
in the land given her by the will. HencQ the interest
of Mrs. Cooke in the land was a security iq th§ hand3 of
the bankers for their debt.
\May V. R&per (b), Briggs v. Chamberlain (c), Barrow
V. Barrow (d)^ Goodrich y. Sliotbolt(e\ Ex parte Baine{f),
and Forbes v. Adarm (g) were also cited.]
Judgment,
Mr. Shebbeare and Mr. Goren appeared for other
parties.
The Vice-Chancellor : —
Where a debt is secured by deposit of tide deeds, the
real estate being the subject of an equitable mortgage,
the owner of the debt has an interest in the real estate.
By the marriage, the debt, together with the title deeds
which were deposited for the purpose of securing the
debt, became the property of the husband. The wife
concurred in assigning the debt and title deeds by way
of security to the bankers, who are claimants of the fund
in this case. The Court ordered a sale of the estate, and
some of the parties whose concurrence in the sale was
(a) 4 De G. & S. 289.
(b) 4 Sim. 360.
(c) 11 Hare, 09.
{d) 4 K. & J. 409.
(e) Free, in Chan. 333.
(/) 3 M. D. & De G. 492.
iff) 9 Sim. 462.
CASES IN CHANCfiRY.
necessary were these bankers, who were the holders of
the title deeds which conveyed an interest in the land for
the purpose of securing the debt They now ask for
payment of the debt, not out of the personal estate, but
oat of the proceeds of the real estate, in which they have
an interest by the deposit of the title deeds. Upon this
the married woman appears and clums to be entitled to
an equity for a settlement, just as if this fund were per-
sonal estate and had been ordered to be paid to the hus-
band's assignees in her right. That is not the course of
the Court. This married woman acknowledged the deed
in aooordance with the provisions of the Fines and Re-
ooveries Act, and by that proceeding she concurred in
assigning her estate. I think she is not entitled to a
settlement, and that the chief clerk was right The
Bummons must be dismissed with costs.
347
isas.
WILLIAMS
V.
COOKB.
▲ A3
348
CASES IN CHANCERY.
•Tan. 90, SI.
Where the
trustees under
a will refused
to fhmish the
solicitor of the
residuary
legatee with
anieoounty
though they
offered to
permit the
pltintUr her-
self or a
professional
accountant
to inspect the
accounts, the
Court ordered
them to pay
the costs of a
. suit to ad-
minister the
testator's
estate.
KEMP t;. BURN.
X HE question^was as to the costs of the suit. The bill
was filed by Mrs. Kemp by her husband, her next friend,
and it prayed that the estate of John Weldall might be
administered under the direction of the Court
The defendants were the surviving trustees and execu-
tors under the will.
Some time prior to 1855 the plaintifi^s solicitor, a Mr.
Simpson, on behalf of the plaintiff required from the de-
fendant Burn an account of the testator's estate, and inti-
mated that unless such accounts were received proceedings
would be taken against the defendants, of which they
would be asked to pay the costs. The defendant Bum
revised to give any account to Simpson, but stated that
he had offered to allow Mrs. Kemp to inspect the ac-
counts for herself.
In the beginning of 1862 Mr. Simpson applied to the
defendant's solicitor and to the defendant Sargisson, the
co-trustee, for an account, but no account was rendered.
The plaintiff shortly afterwards filed this bill, praying that
an account might be taken, and that the plaintiff might
be let into the possession of the real estate devised to
Mrs. Burn, and that the defendants might pay the costs
of the suit.
In their answer the defendants alleged that that they
offered to allow the plaintiffs, or any accountant whom
they would name, to inspect and take copies of the ac-
counts. They alleged that the plaintiffs had to thdr
knowledge borrowed money from Simpson which they
were spending in an extravagant way; and that they
believed Simpson's sole object in requiring the account
was to see whether he could advance further sums on the
security of the property comprised in the will^and that it
GASES IN CHANCERY.
was on this ground alone that they refused to give Simp-
son the accounts he sought.
Mr. Malins and Mr. Nalder for the plaintiffs.— The
necessity for this bill was the refusal of the defendants to
render those accounts which the plaintifis were clearly
entitled to have rendered^ either to themselves or to their
agents: Anon.{a)y Colbfery.Dudley(J)\ tSpringettv. Dash^
wood{e\ Pearse v. Green (rf). It was submitted, there-
fore, that the defendants ought to pay the costs of the
suit.
349
1803.
ArgumenU
Mr. Osborne Morgan for the trustees. — The Court will
not make a trustee pay costs unless for corrupt conduct or
improper motives : Taylor v. Glanmlle (e). Noble v. Mey-
mott{f), A mere refusal to render accounts is no ground
for visiting a trustee with costs: fVhite v. Jackson (g)*
This was not a refusal to render any account, but simply
a refusal to render accounts to a person who the defen-
dants honestly believed wanted to make an improper use
of them. Moreover, the bill was not confined to the
prayer for an account The object of the bill was to
induce the Court to direct that the plaintiffs should be
let into possession of the estate.
The Vice-Chancellob : —
In a case like the present, where an account is de-
manded of trustees and executors of a will by a residu-
ary legatee, there seems to me no doubt what the duty of
the executors is. Their duty is to keep proper accounts,
and to have them always ready when called upon to render
Judgment,
(a) 4 Mad. 273.
(») T. k R. 421.
(0) 2 Giff. 621.
(^ IJ. Ii W. 135.
(e) 3 Mad. 176.
(/) UBeav.471,480.
(g) 10 Beav. 191.
JndpMkL
350 CASES nr ghanceat.
1868. them* If it be a port of their daty to render accounts
when called upon, that duty haa clearly not been per-
formed in the present case.
It appears that in 1855 the solicitor of the plaintifis
applied to the defendant Bum^ who seems to hare been
the acting exe<nitof and trustee^ to render an aocoimt;
that request was not complied wiih^ and, instead of thai
being done^ what the defendant Butn insists upon is, that
an account was duly kept, and was always ready fbr in-
spection ; and that he had oflfered to allow the plaintift
themselves, or any other person, or any accountant on
their behalf, as is stated in their answer, to inspect these
accounts. The defendants also say they offered to allow
the {daintiffs to take copies of them. Although the
answer broadly and distinctly says the offer was to aQow
any other person, or an accountant named by the plaintiffii
to inspect the accounts, the fact seems to be that the per-
son named by the plaintifis was objected to by the defen-
dant Bum^ the acting trustee and executor.
There must be some strong reason to justify any execu-
tor and trustee in refusing to aUow the solicitor of a re-
siduary legatee to interfere in the matter of the accounts.
The reason assigned herd is some benevolent or good
feeling entertained towards the plaintiff which justified
the executors and trustees in this case ; for the defendant
Burn says he had reason to know tiiat the sofioitor who
made the application on behalf of the jdatntiib made it
for no purpose really useful to the plaintiffii^ but to serve a
purpose of his own; that he had advanced monrf to the
plaintiff^ and the view which the executor and taistoe
took of the plaintiff's interest induoed huH to thidcit
would not be for the interest of the plaintiff that he
should render the accounts or allow an inspection of
them. There is nothing to justify this view of his dutf
on the part oi this gentleman.
It has been said, but not proved^ that this solicitor had
advanced money to the plaintiffs. That may have been
Judgmtnt.
CASES IN CHANCERY. 351
the moat kind and proper thing to do ; at any rate, I can- 18^»
not say it was anything improper, or which would justify Kbmf
the defendant Burn in not rendering an account. Upon bubv.
the whole the case resolves itself into this — that the
executors and trustees did not render an account when
called upon to do so in the year 1855 by the plnntifis'
solicitor; that from that year down to 1862 the plaintiffs
remained without an account being rendered, and without
any other offer being made than an offer to them, or any
other person, or an accountant, to inspect and take copies.
I cannot consider that that is sufficient. The bill puts
the case somewhat too broadly, because the eleventh
paragraph, which raises the question, is as follows: —
" The plaintiffs have frequently since the death of the
said testator applied to and requested the defendants to
furnish the plaintiffs with an account of the personal
estate of the testator, and of the rents and profits of his
real estate, and of the application thereof. The defen-
dants, however, always have refused, and still refuse to
give the plaintiffs any account of the real and personal
estate of thd testator, or of their dealings therewith; and
the plaintiffs are compelled by the conduct of the defen-
dants to resort to this Honourable Court to obtain such
account." Now, it can hardly be said that there was a
refusal to give an account; but there was an offer to
allow an inspection of the accounts. It is a hard thing
to be obliged to punish an executor and trustee for any
mistake he may have made in doing his duty honestly;
but, with every consideration towards honest executors
and trustees, if they fail in so important a matter as ren-
dering an account to the person who is entitled to it, and
if that make it necessary for the beneficiaries to file a
bin, it seems that the person failing in such duty ought
to be made to pay the costs of the suit up to the decree.
A decree was ultimately made against both defendants,
with costs up to the hearing.
352
CASES IN dHANCERY.
1863.
AprU 82.
Where the
plans
deposited by
a railway
company
deliaeated a
field, showing
the line, the
limiu of
deviation, and
the boun-
daries on one
fide of those
limits, bat
leaving the
boundaries on
the other side
undefined,
the Court
restrained the
company firom
taking the
land beyond
the limits of
deviation on
the undefined
side, though
the name of
the owner of
the whole
field was
described in
the book of
reference.
WRIGLEY V. THE LANCASHIRE AND
YORKSHIRE RAILWAY COMPANY.
X HE plaintiiFj under a lease dated the 10th July, 1861|
became the lessee of certain lands^ and also of a close of
land called " Laith Ing/ at Netherton, in the pariah oi
Almondbury, Yorkshire, for the term of twenty-one
years. In the lease of the other lands the lessors
reserved power to reserve the said lands for the purpose
of building or making streets, but, in order to preserve
the view to the plaintiff of Melsham Valley, Laith Ing
was not included in such power. When the defendant's
railway was projected, and the usual notices being^served,
the plaintiff dissented unless " arrangements satisfactory
to him were made with regard to the station at Nether-
ton. The company thereupon promised that nothing
should be done without consulting the plaintiff. The
bill stated that, about the end of the year 1852, the plain-
tiff had an interview with a Mr. Perring, one of the
company's engineers, and intimated he should oppose the
approach road being made on the southern side of the
farm buildings across the land comprised in the lease.
Mr. Perring thereupon sent to the plaintiff a tracing
purporting to show, by the colour red, what part of the
plaintiff's land at Netherton was required for the sud
branch railway. The land therein coloured red was
therein stated as containing 710 square yards, and was
described as approach road to station. The land coloured
red was part of the close called Laith Ing. The bill
alleged that if the road were made as thus proposed
the plaintiff's object in taking the lease would be entirely
defeated. The plaintiff, therefore, and with a view to
CASES IN CHANCERY. 353
arrange the dispute in an amicable way, wrote to the ^^1^
company stating his objection, but heard nothing for- Wbxolbt
ther from the company until he received the following thx
notice:— ^,^
YomxauimB
Railway
'^ Lancashire and Yorkshire Bailway, Melsham Branch. Compamt.
" Notice of intention to take lands.
" You are hereby required to take notice, that by vir-
tue of thb several Acts of Parliament relating to the
Lancashire and Yorkshire Railway Acts, viz.. Lands
Clauses Consolidation Acts, &c., the said Lancashire
and Yorkshire Railway Company requires to take and
purchase, for the purposes of the railway and works
authorized by the said last mentioned Act, all that
piece of land and the buildings (if any) thereon, and
other the tenements and hereditaments described and
delineated in the schedule and plan hereunto annexed,
and in the sud plan coloured red.
" And the company demands, and you are hereby
required to deliver at the office of Messrs. T. A. and J.
Grundy, Manchester, a statement in writing of the par-
ticulars of your estate and interest respectively in the
said land, hereditaments, and premises, and of the claims
made by you or any or either of you in respect thereof.
" And you are hereby further required to take notice,
that the said company are willing to treat for the pur-
chase of the land, hereditaments, and premises so required
and intended to be purchased and taken as aforesaid, and
as to the compensation to be made to all parties for the
damage that may be sustuned by reason of the ^cecution
of the said railways and works.
" And you are also required to take notice, that the
company, intends immediately to use the said lands, here-
ditaments, and premises for the purpose of the said rail-
way and works, and that if you or any of you shall be
Stat$mmit
354
CASES IN CHANCERY.
1963.
WRIOtBY
9.
TfiX
LAireAflHlRB
AND
YOftKSBZftX
Railwat
CoxrAmr.
statement.
in possession of the same, or any part thereof, having no
greater interest therein than as tenant for a year, or from
year to year, the company hereby requires you respec-
tively to give up immediate possession to them of the
said lands, hereditaments, and premises.
" And you are further to take notice, that if any of
you claim compensation in respect of any unexpired term
or interest under any lease or grant of any land, heredita-
ments, and premises, the company demands and requires
you to produce [the lease or grant in respect of which
such claim is made, or the best evidence thereof in yonr
•power, to the said company, at the office of their said
solicitors, and if any such lease or grant or the best evi-
dence thereof be not produced within twenty-one days
from the service hereof, the party so claiming compensa-
tion will be considered as a tenant holding only from year
to year, and be entitled to compensation accordingly.
" And you are hereby further required to take notice,
that if for twenty-one days after the service hereof you
shall fidl to state the particulars of your claims respec^
tively, or in respect of any of the lands^ hereditaments,
and premises required and intended to be purchased and
taken as aforesaid, or to treat with the [said company in
respect thereof, or if you or any or either of you and the
company shall not agree as to the amount of compensa-
tion to be paid by the company for any interest belonging
to you, or any or either of you, in any such lands,
hereditaments and premises, or which you or any or
either of you may be by any of the said Acts of Parlia^
ment enabled to sell and convey or release, or for any
damage that may be sustained by you respectively by
reason of the execution of the said railway and works,
the compai^ will eaforce the provisions at ' The Linda
Clauees Consofidation Act, 1845/ for settling cases of
disputed compensatioa, and wiH take sueh measures in
tlie premiaes aa bjr Ih^ said Aete ef Parliament, or any
Simi9imenL
CASES IN CHANCERT. 355
of item, they are empowered to do with a view to obtain- 1868.
ing immediate possession of the said lands, hereditaments^ Wbiomy
and premises, and forthwith proceeding with the execu- ^^^
tion of the said railways and works. Lapca»hi«b
" And you are hereby further required to take notice, YoassBiBa
that the present notice is given without prejudice to the coMArr.
right of the said company to take by virtue of the several
Acts of Parliament hereinbefore referred to, or any of
them, any further or other portion of any lands, buildings,
tenements, or hereditaments belonging to you, or any or
either of you, or in which you or any or either of you are
interested, which may be required for the purposes of the
said several Acts of Parliament, or any of thenL
" Dated the 9th day of February, 1863.
"William S. Lawn,
** Secretary to the said company.
" To W. Battye, G. Armitage, J. Armitage, and W.
Brooke, Esquires, trustees of Beaumont's Charity,
and J. Wrigley, Esquire, and all other parties
claiming to be entitled to, or authorized to receive
compensation for the said lands, hereditaments,
and premises described and delineated in the
schedule and plan hereunto annexed, or any
estate, share, or interest, or charge in or Upon
the same, or any part thereof, or for any injury
or damage by the taking of the said hereditaments
by the Lancashire and Yorkshire Baihr ay Com-
pany.
*^ The Schedule referred to in the Foregoing Notice^
'' All that piece or parcel of land and hereditaments
delineated in the plan hereunto annexed and therein
colotired red, and as now staked or set out situate in the
township of South Crosland, in the parish of Almond'^
bury« in the county of York, together with all houses
356
CASES IN CHANCERY.
Statement,
id63. baildings^ timber^ and other trees, hedges, fences, ways,
•y^JI^^Y rights, water-courses, members, and appurtenances to the
^' said piece or parcel of land and hereditaments belonging,
LAvcAiHiRE which piece or parcel of land and premises contain three
ToRKsHiEE roods; and thirty-six perches, statute measure, and are
Couvlvr. P*^* ^^^ parcel of certain lands and hereditaments de-
lineated and described in the plan and book of reference
relating (amongst others) to the Meltham Branch Bail-
way, deposited with the clerk of the peace for the West
Riding of the county of York, on the 30th day of
November, 1860, and in the said plan and book of refer-
ence numbered 71 in the said township of South Cros-
land and parish of Almondbury."
On the plans deposited the land described as 71 in the
schedule to the notice was defined on one side of the line
of deviation, but on the other side no boundary was
shown. A part 'of the land required by the said notice to
be taken lay on the side of the limits of deviation, where
the boundary was not marked on the deposited plans.
" Paragraph 14 was as follows : — A part of the state-
ment in the schedule to the said notice is untrue. Part
of the said land described in the said schedule is not
defined on the aforesaid deposited plans, or either of them,
and is not delineated or described in the said deposited
books of reference, or either of them, and is not any part
of the lands upon which the company are by their afore-
said acts authorized to enter, or take, or use for their
railway, or any of the works thereof.
" 15. The said notice is dated the 9th day of February
last, but in fact it was not served on the plaintiflT, nor did
the plaintifi* ever see it, until the evening of Thuradayi
the 5th instant The plaintiff craves leave to refer to
the said last-mentioned notice and the plan thereto
annexed as part of this his bilL
" 16. The land in the said last-mentioned notice
contain 3 roods and 36 perches, or almost one acre of
CASES IN CHANCERT.
357
land^ and includes the 710 yards of land comprised in the
said first tracing. The whole thereof is part of the close
called Laith Ing^ comprised in the said lease of the 10th
day of July, 1861, and the same is in front of the win-
dows of the breakfast-room, dining-room, and drawing-
room of the plaintiff's said house, and only a very short
distance from those windows.
*' 18. And the plaintiff charges that a large part of the
said land in the said last-mentioned notice described, and
in the plan thereto annexed and coloured red, is without
the line of railway as sanctioned by the aforesaid Acts of
Parliament, and beyond also the limits of deviation
thereof allowed to the company by law. It is no part of
the lands defined in the said deposited plans and books of
reference. Moreover, the company have not deviated
nor intend to deviate from the line of railway as marked
on the said deposited plans. Part of the land included in
the said notice is much more than 100 yards from the
centre of the said line of railway. The defendants have
no power or authority whatever to enter upon, or take,
or use that part of the said land for their said branch
railway, or any of the works thereof, except with the
consent of the plaintiff, and the plaintiff has refused and
still refuses to assent thereto.
'^ 19. Nevertheless the defendants threaten and intend
forthwith to enforce the compulsory provisions of the said
Acts with reference to the whole of the said land, and
under colour of the said provisions to enter upon and
take the whole thereof for their said branch riulway, and
the station and works thereof, and under colour of their
aforesaid Acts they will do so unless restrained by the
injunction of this Honourable Court.
<'20. On the 6th day of March instant, the said
Messrs. Brook, Freeman, & Batley wrote and sent to
coloured red is in the plan thereto annexed stated to
the said W. S. Lawn, a letter of that date, which is as
follows that is to say : —
ises.
Wriolbt
V.
Tub
Lakcashibb
AMD
yorkshibb
Railway
COXPAMT.
StaUnunt,
358
CAaeS IN CHANCEBT.
1863.
Wriglbt
V.
Thb
Lavcashibe
AND
yorbshibb
Railway
Company.
Statement,
Argumenti
"Pear Sir,
" Meltfaam Branch Bailw^y.
^Referring to our letter to you of the 26th of
January last, and to the repeated objections of Mr.
Wrigley to the Lancashire and Yorkshire Railway Com-
pany taking his land at Netherton, and particularly to
the objections made by him to one of the directors, we
are surprised to find that a notice to treat has been served
upon Mr. Wrigley. The course taken by the company
leaves Mr. Wrigley no alternative but to resort to a
Court of Equity for protection, and he has instructed us
to file a bill agdnst the company for an injunction.
" We are, yours truly,
"Beook, Freeman, & Batlet.
'' Huddersfield, 6th March, 1863.
"W. S. I^awn, Esq,,
" Secretary, Lancashire and Yorkshire ]|^ai}way
'* Company, Manc^iester,"
The company did not intend to deviate the said line.
In the book of reference the field was referred to, and
the plaintiflfs interest described.
Mr. Malins and Mr. G, L. Buuell for the motion.
The company could only take such land as was de-
lineated on the deposited plans, t.^., of which the boun-
daries were defined; here the land outside the line of
deviation on one side was not delineated at all. Tbe
notice no doubt deeoribed the land sufficiently, but that
was not enough. The right of the company to take land
under their compulsory powers must be referred to the
plans deposited, showing what lands are required. If
the company could take land compulsorily one yard
beyond the boundary line shown on the plans deposited,
there was nothing to prevent them from taking land at
any distance from each boundary. It was said that the
CASES IN CHANCERY.
359
land in question was described sufficiently in the book of ^^^
reference as being to the property of the plaintiff, but it Wriolbt
was submitted that that was insufficient. It was admitted thb
the company did not require the land in question for any I'Ahcashibk
of the works specified in the 16th section of the Railway Yoekshibb
Clauses Act. Company.
Mr. Osborne and Mr. L. Bird for the defendants.
The 16th section of the Railway Claus03 Act authorized
the company to enter upon and take all or any of the
lands delineated in the deposited plans or described in
the book of reference, both for accommodation and per-
manent works.
There was nothing in any Actf a^ to deprive them of this
ArffumenU
(a) Sections 15 & 16 of the
Railway Claases Act (8 & 0 Vic.
c. 20), are aa follows ;-t
Sect. 15. It shall be lawful for
the company to deyiate from the
Ibe ddineated on the plana so
dqMsited, provided that no such
deviation shall extend to a greater
distance than the limits of devia-
tion delineated upon the said plans,
nor to a greater extent in passing
through a town, village, or lands
oontumously bDilt upon than ten
jards, or elsewhere, to a greater
extent than one handred yards
from the said line, and that the
railway by means of such devia*
tion be not made to extend into
the lands of any person, whether
owner, lessee, or occupier, whose
name is net meniianed in the
hooks of referenee, without the
prevums consent in writing of
such person, unless the name of
BQch person shall have been
omitted by mistake, and such
omission certified, &c.
Sect. 16. Subject to the pro«
visions and restrictions in this
and the special Act, and any Act
incorporated therewith, it shall be
lawful for the company, for the
pupose of construcHiing the rail-
way, or the accommodation works
connected therewith hereinafter
mentioned, to execute any of the
following works ; that is to say,
they may make or construct in,
npon, across, under, or over any
lands, or any streets, bills, valleys,
roads, railroads, or tramroads,
rivers, canals, brooks, streams, or
other waters, wiihin the lands
described in the said plans, or
mentioned in the said books of
referenee or any correction there-
of, such temporary or permanent
inclined planes, tunnels, embank-
ments, aqueducts, bridges, roads,
ways, passages, conduits, drains,
piers, arches, cuttings, and fences,
as they may think proper.
360
CASES IN CHANCERY.
1B63.
Wri«lbt
V.
Thb
Lancashire
AHD
Yorkshire
Railway
Company.
Argument,
right Admitting, for argument sake, that the field No. 71
was not fully delineated on the plan, it was described in
the book of reference. The language of the section was
" or mentioned in the book of reference." The book of
reference described the field sufficiently by naming the
occupier, and all that was required by the plan was to fix
its locality. The company being entitled to take any
part of No. 71, they were entitled to take all the land
described in their notice to treat. The limit of deviation
was no boundary line, and had nothing to do with the
question. Section 15, as to limits of deviation, applied
only to the construction of the line, and had no application
in cases where, as here, the company wanted to build a
station.
Judgment. The ViCE-Ch ANCELLOR : —
It is evident that no part of the field which is now in
dispute as described on the deposited plans of reference
constituted one close. If so, the company have no power
to take the land comprised in their notice, and they must
be restrained from doing so.
The order made was that, the defendants be restrained
until further order from preceding on the notice dated
the 9th of February, 1863, so far as regarded the plain-
tiff's leasehold interest in the land therein comprised, and
from taking any proceeding under the said notice to
compel the plaintiff to sell his said interest in the said
lands comprised in the said notice, and from entering
upon, taking, and using under the said notice, and from
taking any proceeding under said notice for the purpose
of entering upon, taking, and using.
CASES IX CHANCERY. 361
1803.
BEVAN V. THE ATTORNEY-GENERAL. i4pr.7 22,23.
Lewis JOHN WOODROW, the testator in the
cause, made^ by his will dated 26th May, 1854, the fol- whereatet-
lowing disposition :— d^^.^L
" I nominate and appoint John Haly and William ^^« ^^\
^ 1 /.I. .11 T T directed hii
Bevan, merchants, executors of this my will. I direct proportion of
that all my just debts and funeral and testamentary ^stedintbe
expenses be duly paid and satisfied by my executors as ^^^^^^j^,,
soon as conveniently may be after my decease. I give cash, such
and bequeath all and every my household furniture, paid over as
linen, books^ plate, plated goods, china, glass, apparel, Jhe^exfeption
jewellery, and pictures to T. Lewis, brother of my de- ^ certain
ceased mother, for his use and benefit during his life ; thereinafter
and after his death I wish them to be inherited by M. to*a charity,
Lewis, eldest daughter of W. Lewis, now of Llamnaes S^J^exeSutors"*
House, St. Fagan's, Glamorganshire. I rely, therefore, " "ooii »»
upon my uncle aforesaid so bequeathing them. I desire after his
that my said executor aud partner John Haly may be ^f the'cipital
allowed a period not exceeding one year for converting ompioyed in
*^ ... . ° the business to
my proportion of capital invested in the business I am pay the persons
now carrying on with him into cash ; and I desire that below the
such cash may be paid over as realized (with the cxcep- ^c°^j"o^co^J
tion of certfdn special bequests hereinafter-mentioned) to held—
the Charity Commissioners for England and Wales, of the legacies
the time being, to be invested in whatever stocks may ^ativl*^,'and"
be deemed by them most desirable; and I desire that all not specific.
^ ' and that if the
shares of which I may die possessed, may be transferred particular
into the names of the said commissioners, without being deficiency
was payable
oat of the general personal estate not specially given.
Secondly, that the proportion of cspital included not only the testator's share in the
usets, but also the debt due from the partner.
Smith V. Fitzgerald, 3 Ves. k B. 2, observed on.
VOL. IV. B B
362
CASES IN GHAlfCERT.
1863.
liEVAN
V.
Tub
Attorkby-
General.
Statement,
sold, the interest to be paid by them half-yearly as fol-
lows : — Say four-tenths to Hannah Hart, widow, sister
of my deceased father ; and four-tenths to his brother
Robert, if to be found ; but if not, then the said H.
Hart to receive seven-tenths, and the sud T. Lewis
three-tenths ; or if the said Robert be found, the siud
Thomas will receive two-tenths; the two survivors to
divide the share of the first deceased in the same pro-
portions, and the sole survivor to receive the entire
amount. After the decease of the three persons above-
named, the said commissioners are to pay such interest
as follows : — Say three-fifths to the before*mentioned M.
Lewis, one-fifth to E. Lewis, and one-fifth to J. Lewis,
the two last-named being the second and third daughters
of the said W. Lewis. If the death of either of the two
last-named take place before the death of Mary, the sur-
vivor[of the said two to receive the share of the deceased;
and if the said Mary die before her two younger sisters,
her share to be divided equally between them, the sole
survivor to receive the entire amount of such interest
And after the decease of the three persons last above
named, sufficient of the property so invested by the said
commissioners to be converted by them and paid over to
the following societies and charities, for their use and
benefit: — 260/. to the Propagation of the Gospel Society,
the like to the Church Missionary Society, the like to the
Church Extension Fund, the like to the most eligible
institution (as may be determined by the said commis-
sioners) connected with education, and the like sum to
the Christian Knowledge Society; 150/. to the Cancer
Hospital, of which John Parkinson is or was treasurer,
the like to a London hospital such as may be in the
opinion of the said commissioners most deserving and
needful of such bequest, the like to the Merchant Sea-
man's Orphan Asylum; 100/. to the Infant Orphan
Asylum, the like to the Blind Asylum, the like to the
CASES nr GHANCntT.
S63
Deaf and Dumb Asylum, the like to the meet useful
institution as may be detennined by the said commifr>
aoners for Penitent Females, the like to be equally
diyided amongst the Ragged Schools of the metropolis,
the like to the best institution for Idiots, and the like to
the same for Reformed Criminals : the interest of the
remainder to be paid by the said commissioners in each
year, in sums of not exceeding 5L to such poor deserving
ringle persons as may, to the satisfaction of the said
commissioners, best proye their claim to such allowance,
which I propose as a reward for self-supporting industry,
temperance, acquisition of knowledge, cleanliness, and
especially for the good performance of the duty of main-
taining and supporting with kindness and attention
parents who may be dependent for such upon their chil-
dren, or to sick or incapable members of the family of
such persons who may apply for such sums of money,
iuch fund to be called the *^ Woodrow Fund.'' The same
person (unless under such circumstances as the said com-
missioners may approve) is not to receive the allowance
during two successive years. Should the property be
insufficient to pay the sums, as above stated, to the said
charities and societies, then the division to be made in
proportion, but I should wish that not less a sum than at
least 2007. be set apart for the last-mentioned purpose,
and I request my executors will pay, as soon as conve-
niently may be after my decease, out of the capital em-
ployed in the business, to the persons mentioned below,
the following sums : — ^
'* To each of my executors, 60i."
llien followed a list of legacies. By a codicil dated
the 3rd October, 1857, he nominated a Mr. Stringer as
executor in place of Mr. Haly. The testator died on
the 4th November, 1860, and his will was duly proved
by his executors.
At the date of the said will (May, 1854), the testator
BBS
1S68.
StatemeHt,
364
CASES IN CHANCERY.
1803.
Statement,
waa carrying on business in partnerfl(faip with Mr. John
Haly, in the will named^ under the firm of John Haly &
Co.^ as insurance brokers and general merchants. This firm
subsequently stopped payment, and the creditors of the
said firm accepted a composition on their respective debts,
the whole amount of which or the greater part thereof
was paid by the testator out of his private property.
The assets of the firm of Haly & Co. were not wholly
realized, but the partnership between the said testator
and the said John Haly had for many years past been
wholly dissolved, except for the purpose of winding up
the affairs thereof, and it was believed that the said firm
was indebted to the testator's estate in a considerable
sum.
After the dissolution of the partnership with Haly, the
testator for a short time carried on a similar business
alone, and at the time of his death there were monies
due to the testator in respect of that business, which had
been got in by the executors.
At the time of the testator's death he was carrying
on a similar business in partnership under the firm of
Woodrow, Reynolds, & Co., and he waa also a partner in
an iron business at Bristol under the firm of Woodrow
& Bell. The said two last-mentioned partnerships ceased
upon the death of the said testator, and the sums due to
the testator from the firms of Woodrow, Reynolds, &Co.,
and Woodrow & Bell, were also got in by the executors.
The Charity Commissioners for England and Wales
declined to accept and disclaimed the bequest to them
in the said will contained, but stated that, if hereafter it
should be convenient that they should make the selection
of charities to receive, there would be no difficulty in
making the selection.
The executors ultimately filed this bill alleging that
doubts had arisen as to the construction of the will, and
praying to have the will administered in this Court.
CASES IN CHANCERY.
The only next of kin of the testator at his death was
Hannah Hart, except Robert Woodrow, if living, but
who could not be found. Thomas Lewis and Mary Lewis
died in the testator's lifetime; Eliza Lewis and Jane
Lewis were still living.
Mr. Malins and Mr. Dickinsouy for the executors.
The question in dispute now is, whether these legacies
are specific and liable to fail, in case the fund fail
wholly or in part, or whether they are pecuniary and
demonstrative, and to be pdd, in case the particular fund
fail^ out of the general personal estate.
In Fowler v. Willmighby^a) a gift of a sum of money
directed to be paid out of the proceeds of the sale of an
estate was held payable out of the general assets, in case
the sale could not be effected.
In Saville v. Blacket{b) it was held that where a legacy
was given out of a fund which failed the legacy was
payable out of personal estate.
In Kirby v. Potter {c) a legacy of lOOOZ. of testator's
Reduced Bank Annuities was held pecuniary, the Court
leaning against holding a legacy specific unless clearly
intended.
In Fream v. DowKnp{d) the decree, as varied by the
Lords Justices, declared that legacies, directed by the will
to be paid out of the proceeds of real estate directed to be
sold (the remainder being given over), should be paid out
of the real estate and general personal estate not speci-
fically bequeathed.
On these authorities it was submitted that the lega*
cies were payable out of the testator's general estate in
case the capital in the business should prove insufficient.
Mr. Craig and Mr. Bedwelly for legatees, took the
same view as the executors.
365
1863.
Bbtav
V.
Thb
Attorkbt-
Obmbhal.
Argument,
{a) 2 S. & St. 354.
(h) lP.Wm8.778.
(e) 4 Ves. 748.
(d) 20 Beav. 624.
366
Bbtan
V,
Thb
Attormbt*
Qbmbral.
OASES IN CHANCERY.
In Sparrow v. «7bMtf/yn(a) a bequest of 10,000/. 8terling^
being ^^ my share of the capital now engaged in the banking
business/' was held to be a demonstrative, and not a spe-
cific legacy. In Ellis v* Walker (b) a gift by one partner
to the other, " of 2000/., which appears to be due to him
on the last settlement, if he did not draw it out,*' wae
held specific only, by reason of the last words. In that
case Lord Hardwicke said the Court leaned against con-
sidering a legacy, specific.
[^Colville V. Middleton{c\ and Badrick v. Stevem{i)
also cited.]
Mr. Osborne appeared for Eliza and Jane Lewis.
• Mr. Bacon and Mr. Fields for the next of kin.
These legacies are specific, and if the fund given for
the payment of them fail or prove insufiBcient the lega-
cies must fail or abate. It is a fact that the capital in-
vested in the business of the firm ol Haly & Co. was
insufficient, and the legacies must abate pro tanto.
In the case of Coard v. Holderness {e) the testator
gave the legatee the amount which testator's son owed
such legatee, and directed the legacy to be paid out of
his son's share: such share proving insufficient, the Court
held that the legacy was not demonstrative, but was only
payable by means of the son's share.
In Williams v. Hughes (J^ legacies given by the testatrix
out of her brother's estate, payable after the death of A.^
were on the will held specific, and payable out of real
estate, though in the codicil {g) it was held there was an
intention that they should be paid in any event, and that
they must be treated as demonstrative.
In Gordon v. Duff (A) the same judge held that a gift
(a) 16 Beav. 13d.
{I) Ambler, 309.
(e) 3 Beav. 507.
(d) 3 Br. C. Ca. 431 (note in
Bell's edition gives Lord Thur-
low'8 observationB).
{e) 29 Beav. 391.
if) 21 Beav. 474.
ig) Ibid. 482.
(A) 28 Beav. 619.
CASES IN CHANCERY.
of ** the sum of 2000/. Long Annuities standing in tes-
tatrix's name in the books of Governor and Company of
Bank," was specific, payable not out of general estate,
but out of the Long Annuities of the testatrix.
In Dickin v. Edwards{a) a gift of 1000/. directed to
be raised by trustees by sale of timber was held not to
be charged on the general personal estate.
l^Hancox y. Abbey (b) and iSjtmnray v. G/ynn (c) were
also cited.]
The Vige-Chancellob :—
There is great diflSoulty in this case. I do not think
that the authorities are entirely reconcilable. Some of
the later decisions have gone to a great extent in holding
legacies to be specific, when no more was done than to
point out the fund out of which they were to be paid.
The case now before the Court is one in which pecuniary
legacies or legacies of quantity are directed to be paid
oat of a certain specific fund. If that be so, that is
exactly the definition of a demonstrative legacy. In the
case of Smith v. Fitzgerald (rf) the definition and pecu-
liarities of a demonstrative legacy are exactly what I have
stated. In every case of a demonstrative legacy there is
a specific fund. In this case it is a great peculiarity
that the specific fund, which is said to be that demon-
strated by the testator as primarily applicable to pay the
legacies, is itself the subject of a clear specific legacy,
with an exception out of it of the sums dice<^ted to be
paid as pecuniary legacies. But on an attentive conside-
ration that seems to me to make no difference. There is
authority to show that, if the fbnd out of which the legacy
is to be paid be specified, it cannot affect the question in
the least whether the fund so specified is the subject of a
specific gift itself after the legacies are piud. In the
367
1SC3.
Bbtan
V.
Thb
ATTOaWBT-
Gbrbral.
Argument*
Judgment,
(a) 4 Hare, 273.
(>) 11 Ves. 179.
(c) 0 Yes. 483.
(d) 3 V. & B. 2.
368
CASES IN CHANCERY.
1863.
Betan
V.
The
Attoknby-
Gkneral.
Judgment,
case of Smith v. Fitzgerald the testator had a debt
due to him from the Nabob of Arcot. That debt he
mentions in his will, and out of that debt be directs
a number of legacies to be paid. He describes the debt
as outstanding — not yet recovered — and expresses some
degree of uncertainty as to the amount that may be
recovered. But he estimates the amount, and one of the
questions in the case was^ whether the residue of that
debt, which was indicated as the fund out of which the
pecuniary legacies were to be paid, was specifically given
to two individuals named in the will, or passed under the
gift of the general residue. Sir William Grant decided
both questions. He first decided the question as to
whether the indication of that specific fund out of which
the pecuniary legacies were to be paid made those pecu-
niary legacies specific, or, in other words, made the pay-
ment of them depend on the sufficiency or existence of
the fund out of which they were to be paid. Then he
decided the other question as an entirely independent
question, and wholly unaffected by the consideration
whether or not the remainder of the fund was specifically
given to two persons of the name of Smith or not. But the
Master of the Rolls was there dealing with a gift of pecu-
niary legacies directed to be paidoutof a fund as specifically
described, and as completely separated from the rest of
his assets as could occur or has occurred in any case. He
says, ^' The first question is, whether the legacies given
out of the debt of the nabob are to be considered as
specific ; or, in other words, whether that debt, whatever
its amount might be, was not intended to be divided
among the legatees. The same legacies may be specific
in one sense and pecuniary in another." After referring
to another case, the Master of the Rolls said, '' My
opinion is, that these legatees are entitled to nothing more
than the sums of money bequeathed to them, with
interest thereon from the time of payment^ which seems
CASES IN CHANCERY.
369
to be fixed by the testator himself^ to the time when
the debt should be recovered, and the trustees admit
that it is to be considered as recovered from the time of the
agreement between the nabob^s creditors and the East
India Company/' Then he goes on to deal with the other
question as an entirely separate one. Having disposed of
that question he might or might not have decided that the
remainder]of the debt was given specifically to the persons
indicated, or that it passed by the gift of the general
residue. He decided, expressing great difficulty on the
subject, that it passed by the gift of the general residue.
That case seems to me entirely to govern the present.
The law laid down in that cose seems to me to be
perfectly sound law ; sound, treating it as a legal princi-
ple; sound, as consistent with the principles of common
sense; because, if a man gives to a person a legacy of 50/.
stating that that legacy is to be paid out of a certain
specified part of his property, the primary intention is to
give 507. to the legatee. The rest seems to amount to
no more than convenience — what his purpose was in the
administration of his assets. But the consequence of
holding that the gift of a pecuniary legacy of that kind is
specific is this — that the testator clearly indicating an
intention that the legatee shall have the money, though
he has assets abundant to pay it, yet if any alteration
in the property takes place (if, for instance, a bond-debt
due to himself happens to be paid off), the gift totally
fails. That is quite contrary to what can be rationally
imputed to a testator.
Apply that principle to the present case, which is that
of a partner in a certiun partnership. The testator indi-
cates his share in the capital of that partnership as a ftind
out of which these legacies are to be paid. He makes a
specific gift of his share in the capital oi the partnership,
but he excepts from that the pecuniary bequests now in
question. Afterwards he desires his executors to pay the
1S63.
Bkvait
9.
Thb
Attornkt-
Gbkeral.
Judgment,
370
bAQEB IN CHANOERY.
1868.
Judgment,
pecuniary legacies which he mentions, and agun he indi-
cates his share in the capital of the concern as a fund ont
of which they are to be paid. Suppose in the testator's
lifetime the partnership had been dissolved, and that he
had received 20,000/. — far more than enough to pay these
legacies: the specific fund which he had indicated as appli-
cable for the payment being in his own possession in a
different shape, and there being an abundance of assets)
surely it would be a most extraolrdinary intention to
impute to the testator that a mere gift of money, not
given as an aliquot part of his share in the partnership,
not given specifically, but only having a sufiicient fiind
indicated for its payment — ^it would be a strange violation
of what would naturally appear to be the intention of
the testator to say, because he had got into his pocket
the fund which he intended his executors to pay to them,
and that fund was in the executors' hands after his death,
that therefore the legatees were to take nothing.
It is scarcely necessary to enter into an examination oi
the more recent cases which have been very properly
relied upon as tending to show that in this case the Court
would be justified in holding that these were specific
legadies, the payment of which must depend upon the
existence of the fund which is directed to be applied for
their payment; for I do not find that in any of these
oases the Cfuse of Smith v. Fitzgerald^ which was carefully
and elaborately argued, and decided by one of the greatest
judges that ever sat in this Court — ^a decision which follows
decisions of Lord Eldon, of Lord Thurlow, and of Lord
Hardwicke— was cited or referred to. I cannot impute
to any of the judges who have reoently dealt witli this
qrestion an intention of overruling a case that seems to
me to depend on a principle so perfectly sound. There^
fore I find myself bound to hold that in tfaiB case the
payment of these legacies does not depend upon tlie
ezistenoe of the fund indicated by the testator fer ^
CAS£B IN CHANCERY
37 i
purpose of convenience or otherwise^ as that out of which
the legacies ought to be paid. I maj also observe this —
that in the words by which the testator directs his executors
to pay these legacies in money, the reference to the share
in the capital seems rather parenthetical, and is in very in-
accurate language, for he says: '' I request my executors
will pay, as soon as conveniently may be after my decease,
out of the capital employed in the business, to the person?
mentioned below, the following sums." Now, there, if
you read it thus, the essential part in the gift of the
legacies is the direction to pay: " I request my executors
will pay, to the persons mentioned below, the following
sums, as soon as conveniently " may be after my decease
and out of the capital; the latter words i ecmed to be
used parenthetically for the purpose of convenience, and
it seems to me that the right of the legatees no more
depends upon the direction to pay '^ out of the capital '
than on the words " as soon as conveniently may be."
They are ancillary directions, and in my mind they are
not of the essence of the bequest. The gift is not of a
share of the ^capital, but the capital is indicated as the
property out of which it may be conveniently paid.
As to the other question, which does not arise directly,
I think, when the testator speaks of his capital, he meant
to give all that was coming to him out of the assets of
the partnership.
1S63
Bbtan
o.
Thb
attokkbt*
Gbnsral.
Judgment,
After some discussion it was declared that, according
to the true construction of the will, the several sums
which the testator directed his executors to pay as soon
is conveniently might be after his decease out of the
eapital employed in the business, were not specific lega-
(AeBf but were demonstrative legacies, and were primarily
payaole out of the testator^s proportion of capital em«
ployed in the business (Haly*s)) and that if such proper^
tion should be insufficient to pay such legacies in ftill
372
18G3.
Bbtax
r.
The
Attoknby-
Obneral.
Judgment*
CASES IN CHANCERY.
the deficiency was to be made good out of the general
personal estate not specifically bequeathed; and that
Hannah Hart, as the next of kin of the testator, was
entitled to be paid the clear residue of such personal
estate. It was also declared, that such proportion of
capital as aforesaid included the whole share and interest
of the testator in the assets of the business (Haly's),
including the debt of 2649/. 2s. 3d.; and it was directed
that the residue (if any) of such proportion of capital as
aforesaid should be invested, and the interest of the fund
and of the shares be paid to Hannah Hart for life, then
to Eliza and Jane Lewis in equal shares, with survivor-
ship between them. It was also declared that the two
sums of 487. I6s. Id. and 268Z. 4s. 9d. formed part of the
general personal estate.
March 10.
Demurrer by
a solicitor to
produce letters
written to him
by hit client
about the
time and in
respect of a
matter im-
peached by a
bill as fraudu-
lent, to which
the solicitor
was not made
a party, nor
charged with
fraud —
Allowed.
CHARLTON v. COOMBES.
1 HOMAS ALCHIN, by his will, bequeathed the sum
of 2500Z. to the plaintiffs John Sills Charlton and Tho-
mas Charlton (whom he also appointed his executors)
upon trust to invest the same, and as to 10002. part
thereof to pay the income to his niece Mary Ann Andrus,
then the wife of William Andnis, for her life, and after
her decease to transfer the same to her children as
therein mentioned. The testator bequeathed all his real
estate, and the residue of his personal estate, unto the
said J. S. Charlton and T. Charlton, their heirs, execu-
tors, administrators and assigns, according to the nature
CASES IN CHANCERY.
373
thereof respectively, upon trust to call in and invest such
part of the personal estate as might not be invested, and
to collect and receive the rents of the real estate, and,
after deduction from the principal moneys of the said sum
of 2500., to pay the income of the residue to his niece
the said Mary Ann Andrus and three other persons in
equal shares during their respective lives, the share of
the said M. A. Andrus to be for her sole and separate
use and without power of anticipation. The testator
further directed that, when and so soon as either of tlie
said four persons should die leaving lawful issue of his
or her body, the trustees should sell the real estate and
stand possessed of the moneys, and also of the personal
and residuary estate, upon trust to pay and apply the
annual income thereof equally amongst the survivors and
the children of such as might be dead, the shares of the
parents to vest in the children at twenty-one, with benefit
of survivorship and accruer amongst them.
By a third codicil to his will, dated the 13th Decem-
ber, 1852, after reciting that the said William Andrus
was then dead, leaving the said Mary Ann Andrus his
widow, the testator declared as follows : —
'' That, in case and when the said M. A. Andrus should
marry again without having the previous consent of both
his said executors and trustees, or his executors and trus-
tees for the time being, the interest, dividends, and other
moneys, and all other benefit given to her in and by his
said will, should cease, end, and determine, and that in
lieu and instead thereof she should have, and he did in
that event give and bequeath unto her for her natural
life and for her own separate use and benefit, the clear
yearly sum of 50/. sterling to be paid to her by equal
quarterly payments."
The testator further directed that the surplus divi-
dends, interest, and proceeds over and above the said sum
of 50/. '^ which she would have been otherwise entitled
1868.
statement.
374
CASES IN OHANCERT.
1863.
Charlton
V.
GOOKBBS.
StatetnenU
to had she remained a widow," should go and be applied
amongst her child and children as therein mentioned.
The testator died on the 6th March, 1854, Mrs. An*
drus, without the consent of the trustees and ezecutora
of the testator's will, married the defendant Edward
Coombes. The trustees during some time paid the in*
come of the legacy and share of residue bequeathed by
the will to Mary Anne Coombes, in tiie belief that she
was still unmarried. In January, 1856, representing her»
self unmarried, she requested the plaintiffs to consent to
her marriage with Edward Coombes, but they refused
to do so.
The present bill alleged that in February, 1856, Mary
Ann Andrus, under the name and description of Mary
Ann Andrus, widow, filed a bill in this Court, alleging
the refusal of the trustees to consent to her marriage with
Coombes, and praying that the trusts of the will might
. be administered by the Court ; also that the plaintiff
Mary Ann Andrus might be indemnified in respect of a
mortgage of the 18th November, 1846.
The present bill alleged that this suit was instituted by
Mrs. Andrus after her marriage with Coombes. In April,
1856, the plaintiffs filed a cross bill against persons ad-
ministering the trusts of the will.
By an order made in both suits in July, 1856, His
Honour directed a sum of 1000/. Consols to be transferred
into court, in trust in the causes to an account to be en-
titled, " The legacy account of the plaintiff Mary Ann
Andrus, subject to duty," and the dividends were ordered
to be paid to M. A» Andrus, subject to fiirther order.
The chief clerk certified, in March, 1857, that Mary
Ann Andrus had six children (who, with the husbands of
two of them, were defendants to the present suit). He
also found that the plaintiffi had paid to M. A. Andrus,
on account of her interest in the residuai^y estate, the
sum of Hilf lOs. Id. ; and that there waft due from
CA6B8 IN CHANCERY.
375
M. A. Andnia to the testator's estate, upon an indenture
of mortage dated 18th November, 1846, the sum of
lOOOL with interest, making together (less sums retained
by the phuntifFs) the sum of 1133/. lis.
In the certificate was an afBdaTit sworn in the
causes, by Mary Ann Coombes, in the name and by the
description of Mary Ann Andrus, widow, to liie effect
that she had not since the death of her husband Wil-
liam Andrus contracted marriage with any person, but
was stiU his widow.
The cause came on for further consideration in Decem*
her, 1857, when a decree was made whereby it was
ordered that the costs of Mary Ann Andrus should be
taxed and paid to Mr. Charles Edward Lewis, her soli-
citor; and it was directed, that after payment of the
mortgage debt of 1000/. interest and rent, with interest
and the costs relating to the mortgage inquiry, one-
fourth part of the rents and profits of the real estate
should be paid to Mary Ann Andrus during her life, or
until further order.
On the 6th March, 1862, Mary Ann Andrus died.
On the 25th March, 1862, this bill were filed, the plain-
tifis having only within a few weeks previously discovered
that Mary Ann Coombes was married to the defendant
Coombes.
The bill charged that the concealment of the marriage and
the statement in the affidavit were a fraud upon the plain-
tiffs, upon M. A. Coombes's children, and upon the Court,
and that the defendant Edward Coombes colluded with
his wife with intent to deceive and defraud the plaintifils.
Paragraph 25 was as follows: — ^^ The defendant
Edward Coombes sometimes pretends that until recently
he was ignorant of the terms or effect of the said third
codicil to the said testator's will, and that, before the siud
biU in the said suit of Andrus v. Charlton was filed, he
and th^ said Mary Ann Coombes informed their solicitors
ises.
Crablton
V,
Coombes.
376
1803.
CASES LN CHANCERY.
of their marriage, and that the said bill was filed in the
name of Mary Ann Andrus, as if she were still the
widow of the said William Andrus, with their knowledge
or privity; and he pretends that he is therefore not respon-
sible for the said proceedings, nor for the erroneous pay-
ments that have been made. The plaintiff^, however,
charge the contrary of such pretences to be truth."
The bill prayed for an account as against Edward
Coombes, on the footing of the overpayments which had
been paid to Mary Ann Coombes as aforesaid, and that
he was a party to the fraud.
Mr. James Lewis, of Rochester, die solicitor who filed
the bill in the name of Mary Ann Andrus, was called as
a witness on the part of the plaintiffs, and was also
examined on the part of all the defendants except
Coombes.
Being sworn on the 16th February, 1863, he deposed
that Coombes had been a client of his for ten years past.
Deponent was introduced to Mrs. Andrus on the 13th
September, 1854, with reference to her affairs under the
will, and generally, by the uncle of the defendant
Coombes. Deponent had all his books with him, but
declined to produce them on the ground of privilege.
He was first informed of the proposed marriage by Mrs.
Andrus. The trustees declined to give their consent.
Deponent thought that Mr. John Coombes (the uncle)
knew that if Mrs. Andrus married without consent she
would lose a portion of her income. Mrs. Andrus gave
deponent instructions to file the bill. On several occa-
sions the defendant used to drive Mrs. Andrus over to
Gravesend, and deponent met her at an hotel there.
Deponent knew that they were desirous of marrying, but
could not get the consent of the trustees. She was quite
a woman of business. Deponent thought the defendant
Coombes knew if Mrs. Andrus married without consent
she would lose part of her income^ but he could not
CASES IX CHANCERY.
377
say when defendant first became acquainted with it.
Deponent advised them not to marry. Deponent first
discovered that they were married a month or two before
Mtb. Andrus' death. Mr. John Coombes told deponent
of it, and deponent was very iingry that he had been so
deceived.
Being examined on the same day, on behalf of the
defendants, deponent said, '^My advice to them both,
not to marry, was repeated after defenJaut Coombes
knew of the institution of the suit of Andnis v. Charlton,
. . . . My book would not show when the defendant
Coombes was present at any interviews with Mrs. Andrus
at Gravesend. I cannot recollect the particulars of any
conversation I had with her in the defendant Coombe^'s
presence. I had frequently letters from her. I have no
letters from the defendant Coombes on this subject."
Q. — "Will you produce her letters?" A, — "I decline
to produce them, on the ground that she was my client
at the time I received them."
Counsel for the defendants except Coombes having
offered, on their behalf, to waive the privilege, if any,
the deponent still declined to produce the letters.
The one demurrer was set down by the plaintiffs, and
the other by the defendants other than Coombes, and now
came on for argument.
1SC3.
Chahltox
C00XBB9.
Statement.
Mr. Malins and Mr. Speed for the motion. — If Mrs.
Andrus were living, it was clear she could not refuse
to produce the letters, nor could her solicitor. Then,
how could her death affect the question ?
The admitted rule, that the solicitor should not be per-
mitted to disclose confidential communications made to
him by his client, had no application to the case of fraud.
But it was said the solicitor must be a party to the
fraud in order to bring the case within the exception,
but that was not the rule of law on this subject.
VOL. IV. C 0
ArgtiiMnt,
878
' isao.
CbARZiTOn
V.
COOMBSI.
Argument,
CASES IN CHANCERY.
The privilege was that of the client^ and sot that
of the solicitor^ and the fraud of the client, without any
participation therein by his solicitor, at once took the
case out of the rule in favour of the privilege. Here the
bill was filed alleging a case of fraud on the part of Mrs.
Andrus (the client) and if the defendant Coombes, to
which the solicitor was at most only an innocent party.
It was submitted, therefore, that the privilege did not
apply.
Mr. J. N. Hiffgins in support of the demurrer. — The
question stood now exactly as if Mrs. Andrus were
living. The contrary doctrine was not pretended; the
general rule was, that all communications between solici-
tor and client involving professional confidence are privi-
leged : HeYring v. Clobery (a). This rule was discussed
and considered in Greenouffk v. Gaskell (4), by Lord
Brougham, assisted by Lord Lyndhurst, Chief Justice
Tindal, Baron Parke, and also by Vice-Chancellor Knight
Bruce, in Fearse v. Pearse (c). The rule was not con-
fined to litigation actually commenced or in contemplation:
Herring v. Clobery {d). Within its operation were in-
cluded all documents delivered to and all entries made
by the solicitor: Oreenoiigh y. Gaskell (e): and extended
to facts communicated to the client: Pearse v. Pearse (f).
The rule was absolute as to the solicitor, though modi-
fied as to client {g). There was a distinction taken
between the privilege of the client and the right of the
solicitor, in the latter case a duty being superadded:
Thompson v. Falk (A) : the violation of which would be
a great ofiTence: Chohnondley v. Clinton {i): which would
be restrained by the Court: Beer v. fVard (j). The same
(a) 1 Phill. 91.
ib) 1 M. & K. 98.
(e) 1 De G. & Sranle, 28.
(d) 1 Phill. 91.
(e) 1 M. & K. 100.
(/) 1 De G. & Smale, 28.
(g) Ibid.
(h) 1 Brew. 25.
(i) 19 Vea. 2ti7.
0) Jac. 02.
CASES IN CHANCEBT.
879
prinoipld was laid down in fFtlsan y. Raitall {a), in
which Mr. Jnstioe Butler said a aolioitor's mouth was for
ever shut. In this Court a suit might be maintained to
prevent a solicitor from disclosing the confidential com-
munications of his client : Lewis v. Smith {b) : and if a
solicitor gave such evidence, it would be suppressed at
the instance of the client: Sandfard v. Bnnngton (c):
even at law : Tayht v. Blaeklaw (d). It was dear that
in such a case it was the duty of a solicitor to demur to the
interrogatory seeking a disclosure : Morgan v. Shau) {e\
It is clear that, if Mrs. Andrus were alive and a party
in the suit, the discovery sought could not be obtained
from her: JPear»ey.Pearse(J),Thomp8anv.Falk{ff); and
Airther in case of a criminal charge which is made, she
would not be bound to criminate herself. The only case
in modem times where such discoveiy has been given was
a case of fraud: Warde v. fVarde (A), Befell v. j^!)yre{t).
It was a personal privilege, and survived to the executor :
Parihurst v. Lowten (j), Russell v. Jackson (A) : nor did
the death of his client make any difference : Herring v.
Clobery{fy The only exception was in a case of fraud,
where the solicitor allowed himself to be made a mere
tool, which was not so much an exception as that the rule
did not apply : FoUeti v. Jeffiyes (m).
Lastiy, the privilege could not be waived except by
the client herself.
On these groimds it was submitted that ths demurrer
must be allowed.
1S68.
Chakltok
V.
OooicBas.
(a) 4 T. B. 753, 759.
(h) 1 Mae. k Gcr. 417.
(0)2yss.l89.
(if) 3 Bing. N. C. 235.
(e) 4 Mad. 56, 57.
(/) 1 De G. & Sma. 11.
Ig) 1 Dnw. 27.
(h) 3 Mac. k G. 365.
(t) 10 Beav. 51.
ij) lMer.391.
(&) 9 Hare, 387.
(I) 1 Phill. 91.
(m) 1 Sim. N. S. 3.
C G 2
380
CASES IN CHANCERY.
i«W. May V. Hawkins (a), Fallett v. Jefferyes (6), Rum$M v.
Chakmon Jackson (c), Parkhttrst v. Lawten (d), KeUy v. Jackson (e),
CooxBBi. ife^^- ▼• -^»«ry (/), il€y. v. Hayward(y\ were cited — See
^.rfTii^n*. i'-rf«-y. »-«<««, (A).]
The Yics-Chanoellob: —
There appears to be no case in which it has been ex-
pressly decided whether the death of the client in any
way affects or modifies the rule. In Herring v. Clobery
the objection appears to have been taken^ but was not
noticed by Lord Lyndhurst in his judgment There
can be no doubt that, if a solicitor is a co-conspira-
tor with a defendant in the cause, in concocting a firaud
in respect of which the suit seeks relief, priyilege does
not cover such a case; because, as Lord Cranworth
sud in Fallett v. Jefferyss^ the Court cannot permit it to
be said that the contriving of a fraud forms part of the
professional business of an attorney or solicitor. In that
case the bill sought relief in respect of a fraud, and the
bill charged that the defendant Taylor, an annuitant, and
his wife, and the defendant Jefferyes, a residuary legatee,
with a view to his own interest, and also with a view to
the interests of the other residuary legatees, ^' took
counsel together, and with their respective solicitors, in
order to devise some means of defeating the title of the
plaintiffs to the annuity." In that case there was a strong
charge introduced advisedly into the bill, for the purpose
of raising the question of the conspiracy, and of ob-
taining discovery. But the Court held that the transac-
tion, according to the account of it given in the bill and
answer, was not a fraud; and, therefore, that the solicitor
was not bound to set forth the contents of the letters.
In the present case there is not a single passage in the
(a) 11 Ex. 210.
(») 1 Sim. N. S. 1.
(c) 9 Hare, 387.
(<0 2 Swanst. 216, 221, note.
(t) 13 Irish Eq. 129.
(/) 8 Car. & P. 596.
(^) 2 Car. A; K. 234.
(4) 3 Bing. N. C. 421.
CASJ3S IN CHANCERY.
bill which charges the solicitor with the fraud in respect
of which relief is sought, nor is there any passage which
connects him with any fraud. The solicitor was^employed
by the client in the ordinary way. The bill no doubt
says that the client committed a fraud ; but in order to
take the case out of the privilege, tiiere must be some
specific charge in the bill connecting the solicitor with
the fraud. After stating that he could not recollect the
particulars of any conversation with her in the defendant
Coombes's presence, and that he had frequently had letters
from her, he is asked, " Will you produce her letters ? "
He answers, " I decline to produce them, on the ground
that she was my client at the time I received them."
There is no particular charge in the bill as to these letters,
and I think, therefore, that the solicitor very properly
refused to produce them. The defendants must have
the costs of both demurrers.
382
CASES IN CHANCERY.
18^.
July 6, 7, 8.
A testator
haying be-
queathed the
dividends of a
fund to his
niece for life,
remainder to
her children,
by a codicil
reciting that
her husband
was dead
declared that
in case she
married again
without the
consent of the
trustees she
should forfeit
the legacy and
take only 50/.
a year. The
niece without
the consent or
knowledge of
the trustees
married,
recelTed the
dividends for
sometime,
and died. On
a biU by the
trustees
against the
the husband
(who denied
knowledge of
the clause of
forfeiture) the
Court declared
the husband
subject to the
liabilities
that affected
the wife.*
CHABLTON v. COOMBES.
1 HE testator in this case by his will gave certain pro-
perty on trust for his niece M. A. Andrus, then the wife of
W. Andrus, for her life, to her separate use, remainder
to her children. Shortly after the death of W. Andrus
the testator made a codicil to his will, in which, reciting
Andrus's death, he directed that in case Mrs. Andrus
should marry again without the consent of the trustees
named in the will she should lose the benefits given by
his will, and should take only an annuity of 50L per
annum for her life.
Subsequently to the testator's death, Mrs. Andrus
applied to the trustees for their consent to her marriage
with the defendant Coombes, and they having refused (it
was stated at the bar that it was against this very con-
nection that the proviso in the codicil was directed), Mrs.
Andrus in 1854 married the defendant Coombes privately
and concealed the marriage. She continued to go by the
name of her first husband, and received the benefits
under the will of the testator on the footing that she was
still a widow. In 1856 she filed a bill against the trustees,
in which she described herself as Mary Ann Ajidrusi
widow, and in support of the claims made by that suit
she filed affidavits in which she deposed that she was
still unmarried. Several payments were made to her
under the orders of the Court in the suit. She and her
husband did not reside together," though on terms of ap-
parent intimacy. In 1862 Mrs. Andrus died. Shortly
after her death the trustees became aware of the
concealed marriage, and filed a bill against Coombes,
charging that he had been guilty of fraud, and had in-
* See anti p. 872.
CASES IN CHANCERY.
383
duced his wife to commit perjury, and alleging that he
had knowledge of the forfeiture clause, and was privy to
the false representation and statements on which she filed
the bill. The bill prayed that the defendant might be
decreed to recoup the trustees in the amount improperly
paid to her as aforesaid.
Coombes by his answer positively denied that he was
aware of the forfeiture clause contidned in the will of the
testator, or that the consent of the trustees was necessary
to the marriage. He also denied all knowledge of the
affidavit made in the suit of Andrus v. CharUouy or that
the bill was filed with his privity or knowledge.
He alleged that he married his late wife in secret
on the ground that some of her children had threatened
to do him some bodily injury. After his marriage he con-
cealed it because he felt he ^^ had got into a hornets' nest,"
and wished to avoid them.
The principal witness called on behalf of the plaintifia
was Mr. Lewis, of Rochester (a), who had been exa-
mined.
1809.
Charlton
COOMBBB.
Statement,
Mr. Matins and Mr. Speed for the trustees. — A hus-
band is liable for wrongful act «? committed during cover-
ture. In Adair v. Shaw ( ._, the assets of an intestate, to
whom a feme covert had taken out tiers of adniinidtration,
having been wasted, and the- husband having died leaving
the wife surviving, the Court held the husband's assets
chargeable in equity for the waste committed during
coverture. The same principle was acted on by Lord
Cottenham in Tyler \. Bett{c). In the case of Head v.
Briscoe (d)i a husband was held liable for a libel published
by' his wife, who was separated from her husband, there
being no proof of adultery. Lord Chief Justice l^ndal in
that case said, '' There is no doubt in point of law that a
Argument,
(a) See antk.
(b) 1 Sch. & L. 243.
(c) 2 M. & Cr. 89.
(d) 5 C. & Payne, 484.
384
1803.
Charltok
C0OMBB8.
Argument.
CASES IN CHANCERY.
husband, so long as the relation of husband and wife
continues, is answerable to a third person for what is done
by the wife."
It is clear that the receipt of this money was a wrong-
ful act on behalf of the wife. It is clear, too, though
that is not necessary for this case, that the husband was
cognizant of his wife's acts, and had the benefit of the
money so improperly obtained by her fraud.
Mr. Greene and Mr. Talfourd Salter for the children. —
In Clough v. Bond {a), the principle laid down in Adavr
V. Shaw was acted on by the Court, and the assets of the
husband of an administratrix declared liable to make
good the defalcations of the administratrix. In Vaughan
V. Vanderstegen (J) Vice-Chancellor Kindersley esta-
blished the same doctrine. \^Manby v. Scott (c), Savage v.
Forster (d), Waithman v. Wakefield (e), Blades v. Free (/),
Edwards v. Farebrotker (g), and Montague v. Benedict {h)y
were also cited.
Mr. Bacon and Mr. Halletty for the defendant
Coombes, contended that the evidence failed to show that
Coombes was privy to the improper conduct of the wife.
The bill charged perjury and fraud, and those charges
must be proved. Supposing them proved against Mrs.
Andrus, was the husband liable for his wife's perjury and
fraud ? — Clearly not. This was not a mere bill for an
account. The case made and relied on was that the de-
fendant had himself been guilty of fraud, but there was
not a tittle of evidence to prove what was the equity of
the bill. It was submitted, therefore, that the bill must
be dismissed with costs.
(a) 3 M. & Cr. 490.
(b) 2 Drew. 383-5.
(0) 2 Smith L. C. 375.
(d) 9 B. & C. 161.
(e) 1 Camp. 120.
(/) 9 Mad. 35 (ca. 18).
(g) 3 Con. k P. 524.
(4) 2 Smith L. C. 408.
CASES IN CHAKCERT.
386
The Vice-chancellor : —
The evidence of Mr. Lewis establishes against the defen-
dant Edward Coombes the allegation of the bill, as to
his knowledge of the condition in the will upon which,
by his wife's marriage, this property would be forfeited
and become the property of the children of his late wife.
There is no doubt as to the case so far as it relates to
the late Mrs. Coombes. She knew well that by her mar-
riage with Coombes the whole of her property would
become forfeited and become the property of her chil-
dren. Knowing that, she made it a condition that the
marriage should be kept secret.
The defendant's case is, that he was wholly unaware
that the condition in the will would work a forfeiture of his
wife's interest in the property, and he has endeavoured to
make out a case, as a reason for concealment being desired
by his wife, that ill-will and quarrelling existed between
himself and some of her children, on account of his
attentions to their mother. When a defendant charged
with fraud of this kind positively and distinctly denies it,
and when against his denial there is evidence which the
Court is bound to weigh, the greatest caution and cir-
cumspection are necessary in dealing with the evidence on
both sides. But I have had the satisfaction in this case
of hearing the evidence of Mr. Lewis, upon which the
case mainly depends, criticised and commented upon in
such a way as that every weakness has been extracted
from it. Looking at in the most favourable point of view,
it seems a highly improbable thing that the defendant
Coombes, who was about to marry this lady, and who
admits that he was aware of her right to property under
this willy having agreed with her to conceal the marriage,
could have been wholly innocent and ignorant of all know-
ledge of the true motive for this concealment, or of the
nature of his wife's title to the property.
If the case were one to which the doctrine of con-
1868.
Jwigmtti^^
CASES IN CHANOERT.
i9m.
Judifmmii*
structive notice were applicable, it would be free from
all doubt whatever, because, independently of the evidence
of Mr. Lewis, there are other circumstances which would
bring that doctrine into operation. But constructive
notice i$ out of the question. There must be evidence
sufficiently clear and distinct to satisfy the conscience of
the Court upon the question before it sufficient to enable
the Court to say whether the husband was or was not
aware of the condition which attached to the property of
his wife. The defendant says he was not ; and all his
evidence tends to support the probability[of his ignorance.
The law recently introduced, which permits a man to
give testimony for himself, has made the defendant's
declaration on this subject evidence; but the value of
evidence of this kind must be subject to all those consi-
derations which arise from the circumstances of the inter-
est and situation of the person who gives evidence in his
own favour. Mr. Lewis is a professional man of esta-
blished character. He had been consulted by Mrs.
Coombes and by the defendant Coombes himself, and, in
one passage from bis evidence he states what passed
between them with reference to knowledge on the part
of the defendant Coombes that the wife would lose her
property if she should marry. Mr. Lewis says, ^* I
advised them both not to marry." Now, advice of that
kind would be discussed, and the reasons for it con-
sidered. One reason for that advice probably was, that
the defendant would get into a ** hornet's nest," — a dis-
agreeable situation — ^being at ill-will with the sons and
other members of the family* Another reason was that
Mrs, Andrus would lose the whole of her property if she
married. That was a reason which could not escape the
attention of any intelligent l^al adviser. It seems pro«
bable that Mr. Lewis would take care to conmiunioate
these reasons to the parties, and, indeed, it would be a
singular thing if he did not, though he might be cautious
CASES in CHANCERY.
in doing so. He proceeds to say, " This was before and
after the hearing of the suit I had seme conversations
with the defendant Coombes upon that subject" That
subject seems to have been the suit. This question is
then put — ** From your conversation with the defendant
Coombes, have you any doubt that he knew that if she
married without consent she would lose part of her
income?" Answer — " I think he knew it, but I cannot
say when he first became acquainted with it. He must
have known it about the time of tlie hearing of the
cause ; whether before or after, I cannot say." It has
been justly remarked upon the form of evidence thus
given, that the witness says he "thinks" he knew it.
In order to make out the best evidence which would be
proper evidence, the witness ought to have said what it
was that the defendant Coombes said or did to induce
him to think this, because without that it was a mere
thought of Mr. Lewis, and that is not properly evidence.
But Mr. Lewis says, ''I cannot say when he first
became acquainted with it. He must have known it
about the time of the hearing of the cause." He is
speaking of conversations in the year 1856, six or seven
years before the time when he gave his evidence. And
such a statement so made is evidence upon the subject.
Mr. Lewis was consulted with reference to the circum*
stances of the wife's ])roperty, and upon the subject gene*
rally, and being asked the question, " From your con-
versation with the defendant Coombes have you aoy
doubt that he knew it?'* (/. e, the clause of forfeiture) at a
certain time, he replies, ^' I think he knew it*"
The conclusion seems to be irresistible that, where
knowledge was so highly probable and ignorance so very
difficult-^where one man states himself to have been
ignorant and another man says he thinks the other knew
it — ^the result must be that the condition of ignorance set
up by Coombes cannot prevail But there are other
387
1868.
CnAKLTOV
V.
Coomb Bs.
388
1808.
Judgment,
CASES IN CHANCERY.
passages in Mr. Lewis's evidence which all point to the
same result, for he says that, as early as in November,
1854, ^' I saw the defendant Coombes with his uncle
John, on the 29th of that month. Shortly before or
after this interview I searched for the will of Thomas
Alchin in Doctors' Commons. This interview, I have no
doubt,^was upon the subject of Mr. Andrus's affairs under
that will." Then he says, ^^ I saw the defendant Coombes
again in October, 1855, with his uncle, regarding Mrs.
Andrus*s interest under the will. I am certain that,
previous to this, the liability of any husband she might
marry had been discussed." Was it possible that any
professional man could have all this discussion about Mrs.
Andrus's interest under the will, and yet keep the defen-
dant Coombes ignorant of the condition that she would
lose her property if she married ? I cannot come to any
other result than this — that the defendant Coombes was
not ignorant, as he represents himself to have been, of
the effect of the gift.
The result is that, as agdnst Mrs. Andrus, the mar-
riage was clearly a forfeiture of the property. All her
right to the property went, and her use and enjoyment
of the property after the date of the marriage was the
use and enjoyment of property which she knew to be the
property of other people ; and of this I cannot believe
that her husband was ignorant. This property was dealt
with by the Court, Mrs. Andrus appearing in the charac-
ter of a widow ; and, under an order of the Court, a
debt which the defendant Coombes was bound to pay,
has been discharged out of property which, by the second
marriage, had become the property of his wife's infant
children. The result is, that I must consider the defen
dant Coombes as subject to all those liabilities which
affected his wife, and affected himself after the marriage.
The property must be accounted for, and justice must
be done to her estate, which is here represented, not by
CASES IN CHANCERY.
Coombes^ but by one of his late wife's sons. The fraud
on the Court on her part is glaring, and the order of the
Court which directed a certain application of the money
has ceased to have any operation. But, at the same time,
so much of the fund as has been expended for the benefit
of the children must be set off against what is due from
the trust.
I am not satisfied with the conduct of the trustees.
Charges of fraud have been made by the bill which are
quite unnecessary.
[Mr. Malins was heard on the subject of costs.]
The Vice-Chancellor : — I think justice will be
done by giving to the defendants so much of the bill as
refers to the improper charges (paragraphs 10 to 16).
The order, therefore, will be that the taxing-master tax
the costs of so much of the suit as is occasioned by the
charges from paragraphs 10 to 16, and set them off against
the costs payable to the plaintiff; tax the costs of the
plaintiff of the rest of the suit^ and let the defendant
Coombes pay to the plaintiff so much as are not covered
by the set-off. There must be an inquiry as to what (if
anything) has been expended in the maintenance and
education of the children ; also an account of what would
have become due in respect of the annuity of 50/. from
Mrs. Andrus's marriage till her death ; and the amounts
would be deducted from the sum payable by the de-
fendants
389
ClTARLTOir
V.
Coombes.
Judgment,
VOL. IV.
D D
390
CASES IN CHANCERY.
1863.
May 30.
June 1.
The executor,
who was also
named as
devisee
in a will, not
attested so as
pass real estate,
entered into
possession of
the real estate,
expended his
own monies in
improvements,
and died in-
testate. His
administratrix
took a transfer
to herself of a
mortgage on
the estate, and
claimed it as
assets under
an alleged
arrangement
with Uie tes-
tator's widow,
that her hus-
band took the
estate in dis-
charge of a
debt due from
the testator.
On a biU, filed
by the testa-
tor's heiress,
the Court held
that the execu-
tor must
account for
the rents from
the testator's
death, with an
allowance for
permanent im-
provements.
Nanney v.
WUliama,
22 Beav.
462—469,
followed.
PELLY V. BASCOMBE.
John S. BASCOMBE, the testator, by his will,
dated the 2nd August, 1833, gave and devised as follows r
— *' I leave to ray beloved wife Harriet Bascombe all and
everything I may die possessed of for her life, and at her
death to be divided in equal portions between our two
children Harriet and Susannah Marjory. I do appoint
James Basoombe (my own brother) and John Langfield
(my wife's own brother) as executors of my will, and trus-
tees for my wife and children.'* The will was insuffi-
ciently attested to pass real estate, being attested by only
two witnesses.
By an indenture dated the 27th September, 1817, the
testator demised certain lands and hereditaments, called
Afipuddle, of which he was seised in fee, to one Thomas
Tapp for a term of lOOO years, to secure the sum of 200/.
and interest thereon.
The testator died on the 8th August, 1833, leaving his two
daughters Susannah M. Bascombe and Harriet Bascombe
his co-heiresses at law. Susannah M. Bascombe died in
1834, never having been married. The other sister,
Harriet Bascombe, the plaintiff, in 1843, being under
twenty-one, married the plaintiff John Pelly. Imme-
diately after the testator's death James Bascombe, one of
the persons named as executors in the will, entered into
the receipts of the rents and profits of the real estate,
and expended a considerable amount of his own monies^
alleged to be 780/., in erecting a dwelling-house, five
cottages, a malt-house, stable, barn, &c., on the property*
He also kept down the interest on the mortgage. In
February, 18^8, James Bascombe died intestate.
In April, 1860, the plaintiff, who was the sole surviving
daughter of the testator^ filed a bill against Mary
CASES IN CHANCERY.
391
Bascombe (the widow and administratrix of James Bas-
combe) and James Bascombe, his infant heir at law,
alleging that James Bascombe had entered into possession
of the devised estates on behalf of the plaintiff and her
sister, and had clothed himself with a fiduciary character.
The bill prayed tliat an account might be taken of the
rents and profits, of the amount due for principal and in-
terest on the mortgage, and also for an account of the
rents and profits of the hereditaments &c. received by
the said James Bascombe or Mary Bascombe, or which
but for their wilful default they might have received.
The bill prayed that on payment of what, if anything,
should be found due in respect of the said mortgage, the
said Mary Bascombe might be decreed to reconvey to the
plaintiff, or as they should direct. The bill fiirther
prayed that in case any sum should be found due from
the estate of the said James Bascombe deceased, or from
the said Mary Bascombe, that the said Mary Bascombe
might be decreed to pay such amount to the plaintiffs.
In case the said Mary Bascombe did not admit assets,
the biU prayed that the usual accounts might be taken.
Mary Bascombe, in her answer, alleged that James
Bascombe entered into possession of the lands upon au
wrangement with the widow of J. S. Bascombe that he
should have the lands in satisfaction of a large balance
which was due to him from J. 8. Bascombe.
Thomas Bascombe, the infant heir of James Bascombe,
in his answer claimed the benefit of the Statute of Limi-
tations.
The original plaintiff Mary Bascombe died after the
institution of the suit, and administration to her and her
husband^s estate was taken out by Henry Richards,
i^ainst whom the suit was revived.
1863.
Statement.
Mn Malins and Mr. Sandys for the plaintifis. — The
only defence made to this suit is the Statute of Limi-
D D 2
Arguments
392
C.\SES IN CHANCERY.
18G3.
Pelly
Bascombb.
Argument.
tations, but it is clearly unayailing here, inasmuch as
there was no adverse possession. In the first place^ the
plaintiff Mrs, Pelly was under disability ever since her
father's death, first on the ground of infancy, and se»
condly of coverture. Secondly, there was no adverse
possession, inasmuch as James Bascombe must be pre-
sumed to have entered into possession in a fiduciary cha-
racter, and not as a stranger. He was the person named
in the will as executor, and must have entered for the
benefit of the family, or he could have had no right to
enter at all. He kept down the interest on the mortgage,
and did all those acts which, had the will been valid, it
would have been his duty to have performed. K James
Bascombe entered in a fiduciary character, the possession
of his widow and administratrix must have been of a similar
kind. It is true she took a transfer of the subsisting
mortgage to herself, and had in that way acquired the
character of a mortgagee in possession; and it is sub-
mitted that an account must be directed against her
in that capacity; but during no period was the possession
of herself or her husband adverse to the rights of the
plaintiffs.
In Thomas v. TliomcLs(a\ a father had entered into
possession of the lands of his infant children, and Vice-
Chancellor Wood held that he must be presumed to have
entered as their guardian and bailiff, so that the Statute
of Limitations did not run against the children until they
attained twenty-one. In the same case it was also held
that, if the possession of the father was continued after
the children attained twenty-one, such possession would
be held to be continued in the same character^ and the
account would be directed, not from the filing of the bill,
but from the entry. Substitute the word "uncle" for
" father," and the present case was on all fours with that
case.
(a) 2 K. & J. 70.
ArQummiU
CASES IN CHANCERY. 393
Mr. Bacon and Mr. Joliffe for the defendants, Henry 18^.
Bichards and Thomas Bascombe, the infant heir.
It was not disputed that the plaintiff and her hus-
band were entitled to maintain this suit in respect
of that moiety which descended upon the female plaintiff
from her father, inasmuch as twenty years had not
elapsed from her attaining twenty-one to the time of filing
the bill
But, as to that moiety which became vested in Susan
Marjory on her father's death, it was submitted that the
plaintiff's claim was barred by the Statute of Limitations.
Susan Marjory died in 1834, and therefore the saving
provided by 3 & 4 Wm. 4, c. 27, s. 16, began to run at
her death and expired in 1844 («) : See SugderCs Vendors
and Purchasers {b).
But, in fact, the statute began to run on the entry of
James Bascombe in 1833. It was not necessary that his
possession should have been adverse, because by the
statute 3 & 4 Wm. 4» c. 27, sees. 2 and 3, the doctrine
of non-adverse possession is done away with, except in
cases provided by section 15(c), and the time would run
(a)- 3 & 4 Wm. 4, c. 27, 8. 16. an entry or distress, or bring an
''Provided always, and be it action to rc::3vcr such land or
further enacted, that, if at the rent, at any time within ten years
time at which the right of any nexc, after the time at wj^ich the
person to make any entry or dis- person to whom such right shall
tress or bring any action to re- have first accrued as aforesaid
cover any land or rent shall have ^^^^^ h&ve ceased to be under
first accrued as aforesaid, such »iny such disability, or shall have
person shall have been under any died, which shall have first hap-
of the disabilities hereinafter men- pened."
tioned, that is say, to infancy, co- (^) ^3 ^- P- 400, c. 12, s. 3,
verture, idiotcy, lunacy, unsound- pl- ^-"^ ; I'i ed. p. 482, c. 12, s. 3,
ness of mind, or absence beyond pl> IB.
the seas, then such person, or the (c) Cases where possession not
person claiming through him, adverse at time of passing the
may, notwithstanding the period Act. See also Scott y, Nixon,
of twenty years hereinbefore li- 3 D. & W. 388, Sugden's Real
mited shall have, expired, make Property Statutes, p. 78.
1808.
PaLLT
V.
Bascombb.
Ar§Hmcnt»
304 CASES IN CHANCEBY.
from the entry^ whatever might be the nature of the pos-
session : Nepean v. Knight(d)j and SmitKs Leading CaseSy
4th ed. 433. In Thomas v. Thomas, the person entering
was the father^ who was the natural guardian, but here
James Bascombe could not be guardian, and must be
assumed to have entered for his own benefit, and his
paying interest on the mortgage made no difference.
Lastly, James Bascombe was only a constructive trustee,
and therefore was not deprived of the benefit of the
statute of 3 & 4 Wm. 4, c. 27, s. 25.
In any case the account could only be directed from
the filing of the bill: PuUeney v. Warren{V).
Judgment. Jjj^ ViCE-ChANCELLOR :—
One effect of the statute 3 & 4 Wm. 4, c. 27, ia mate-
rially to alter the law as to what is called adverse posses-
sion. The present state of the law is as follows: — The
fact of a person receiving the rents of a property raises
a presumption that he receives them in the character of
owner ; but this presumption may be rebutted in many
ways. It may be rebutted by express evidence to the
contrary; by evidence affecting the person who has
entered into possession ; or by evidence of the mode In
which he has dealt with the rents. In Thomas v. Tho'
mas J as I understand it, the Vice- Chancellor Wood had
to consider the case of a father who had entered upon his
infant son's lands, and in that case he held that the father
had entered as guardian, though he there expressed an
opinion that an infant could not, in all cases, treat a
stranger as a bailiff for the purpose of avoiding the effect
of the Statute of Limitations.
But the present case, where the person who entered
was the uncle, the nearest male relative of the infant
and the executor named in her father's will, and where
(a) 2 M. & W. 804.
{h) 6 Ves. 72— M.
CASES IN ClfANCERY.
he employed the rents in keeping down the interest on
the mortgage^ the case can hardly be considered as a case
of an entry by a stranger. According to Littletonj and
Lord Coke's Commentary^ Co. Litt. 90 {a), an infant^
even after attaining twenty-one^ is entitled to make any
stranger who has entered into possession account to him
as a bailiff. Where possession is relied upon as a bar it
ought to be a clear and absolute possession^ with nothing
equivocal. Here it is alleged that the executor entered
into possession under an arrangement — an arrangement
which neither the widow or the testator's children had
any power to make. It would seem^ tbereforcj that the
executor did not enter as a stranger^ but in such a
manner that he must be treated as being in possession in
a fiduciary character. He did nothing during his lifetime
to alter the character of his possession. As his widow,
after his death, paid off and took a transfer of the mort-
gage, that is a sufficient ground for making her account
as a mortgagee in possession, and not like her husband,
merely as a bwliff. The plaintiff's right to redeem has
395
1863.
Judgment.
(a) Section 124 of littleton'a
.Tenures, Tomlin's Edition, p. 161 :
'' Also if other man (than guar-
dian) who is not the next friend
occupieth the lands or tenements
of the heir, 88 guardian, insoccag^e,
he shall be compelled to yield an
account to the heir as well as if
he had been next friend, but that
is no plea for him, in the writ of
aocounti to say that he is not the
next friend, but he shall answer
whether he occupieth the lands
or tenements, as g^uardian, in soc-
eage, or not. But gtuere, if after
the heir hath accomplidhed the
age of fourteen years, and the
guardian, in soccage, continually
occupieth the lands until the heir
comes of full age (seil.) of twenty-
one years, whether the heir, at
his full age, shall have an action
of account against the guardian
from the time that he occupied
after the said fourteen years as
guardian in soccage, or against
him as against his bailiff."
In his Commentary, Sir E.
Coke says, *^ThiB quare came
not out of Littleton's quiver, for
it is evident that after the age of
fourteen years he shall be charged
as bailiff, at any time when the
heir will, either before his age of
twenty-one or after.
396
CASES IN CHANCERY.
1863.
Judgment,
been fully established as against Thomas Bascombe^ the
infant heir.
I have had some doubts how far the accounts should go
back, but I shall follow the decree in Nanney v. WxU
Iiams{a)y and direct accounts from the death of Mrs.
Pelley's father. It appears that the executor has laid out
large sums in buildings and other improvements^ there-
fore I shall direct an inquiry as to what he expended
in his lifetime in perknanent improvements or otherwise
for the benefit of the infant. I have taken the form of
this inquiry from Umbleby v. Kirk{b)y where the expen-
diture was as unauthorised as here. I shall allow Mary
Bascombe's costs to be added to the mortgage-debt, and
not give any costs against Thomas Bascombe.
A solicitor who
has acted for
the plaintiff has
a lien on costs
under a decree
for payment of
costs to his
client, after
he has ceased
to be solicitor
in the caase,
and although
he had taken
his client in
execution
for the costs.
O'BRIEN V. LEWIS.
X HE plaintiff in this suit obtained a decree with costs,
against the defendants to the suit. The present petitioners,
Messrs. Lewis & Son, acted as his solicitors in that suit,
but had subsequently been changed. The petitioners had
sued the plaintiif for their costs, and obtained judgment,
upon which a writ of ea. sa. had been issued, on which
the plaintiff had been taken in execution, but nothing
had been paid for costs. The former solicitors now pre-
sented a petition claiming a lien for their costs on the
costs decreed to be paid in the suit.
(a) 22 Beav. 452, 469.
(Jb) C. P. Cooper, 1837, p. 264.
CASES IX CHANCERT.
397
Mr. Jessel for the petitioners.
Every point raised by the respondents on this petition
had been considered and decided in Lloyd v. Mason^ay
That case decided that the solicitor's lien was not affected
by an execution being issued against the client's person.
The petition became necessary from the notice served
by the plaintiff's present solicitor not to pay the costs to
Messrs. Lewis & Son.
1863.
At^ntent,
Mr. Greene and Mr. Cates for the plaintiff.
First, there was no lien, inasmuch as there was no
definite fund, but simply a decree for the costs. As
defined by Baron Parke, '^ The lien which an attorney
is said to have on a judgment (which is, perhaps, an
incorrect expression) is a claim to the equitable inter-
fence of the Court to have that judgment held as a security
for his debt:" Barker v. SU Quentin{b).
In Lloyd v. Mansel{c), the Court refused to direct
the amount awarded for debt and costs to be paid to
the solicitor.
In Lloyd v. Mason, it was an attachment and not a
judgment, and this Court has always taken a distinction
between the two.
[Darw V. Busliid), Jauralde v. Parker (e), were also
cited.]
Seealso-Boier/* v. i?a«(/), and 1 & 2 Vic. c. 110,
8. 16.]
Mr. Brooksbank appeared for the defendants in the
suit, who were in the position of stakeholders who had
received notices from both sides not to part with the
fund. They claimed their costs. It was arranged that
10/. should be deducted for their costs.
(a) 4 Hare, 132 ; Ibid. 138.
(h) 12 M. & W. 441, 4:)1.
(c) 22 L. J. N. S. Q. B. 110.
{d) 1 Tonng's Ex. 358.
(e) 30 L. J. N. S. Ex. 237.
(/) 3 Sma. & G. 168.
398 CASES IN CHANCERY.
.1863. The Vice-Chancellor :—
A solicitor's lien is a right which is founded on the
rules of this Court and on the principles of common sense.
Judgment. The argument that by taking the plaintiff's body in
execution, the solicitors have abandoned their right and
lost or destroyed the lien on the fund c(innot prevail in
this Court.
That doctrine, even if it prevailed at law, has never
been adopted by this Court. The solicitors in this case
seem to have done nothing to deprive themselves of the
lien on the fund which they by their diligence have
recovered.
The order must be that, after deducting 101 for costs
of the defendants to the suit, they the defendants, Messrs.
Lewis & Lewis, pay the balance of the fund to the
petitioners.
It is not a case in which the plaintiff ought to be
ordered to pay costs.
May^: ELSEY V, ADAMS.
An ex parte IVIR. MALINS and Mr. Herbert Smith moved to dis-
obtadned on an ^^^^6 an injunction which had been previously obtained
affidavit, of ^^ p^j.^^ ^j^ motion, without an office copy of the affidavit
which no office ^ ' t . r>i
copy was in The fact that no office copy had been in Court at the
time of making time of the application was proved, and indeed could not
di^dy^°^th ^® denied. In Jackson v. Ciw«£fy(a) the rule was laid
coats. down, and was also accurately stated in Daniel's Prac-
tice, 2nd ed. p. 1442.
(a) 10 Sim. 326*
CASES IN CHANCERY,
The Attorney" General Y. Letois{a) was also cited.
Mr. Bacon and Mr. Hardy appeared for the defendant, apams.
The Vice-Chancellor :— judgment.
This may eeem a small matter, but it has always been
the practice of the Court to require strict conformity
with its rules in the matter of Special Injunctions. As
there was no office copy of the affidavit in court when the
injunction was moved for, it must be dissolved with costs.
TURNER V. BURKINSHAW. J«iw26.
I
N this case the plaintifffiledabill against the defendant. The defendant,
alleging that in 1842 the defendant was appointed agent tnted against'
and manager of certain real estates of considerable value. fo^*J[ccoun't
The bill alleged that the defendant was accustomed to movedthatcer-
, , , , tain acconnts
deliver to the plaintiff periodical accounts, in the follow- alleged in the
ing form: — ^**An account of rents and receipts received false envies"
by J. J. Burkinshaw, belonging to the Rev. Charles ^^^uced on
Turner." The expenditure was classed under the head an affidavit,
of *' Disbursements." The bill referred specifically to vouchers were
seyeral of the accounts. L'J^co'Sdno'*
The bill alleged, that on one particular occasion the otii«^i»eput
defendant produced a private book or ledger which he answer.—
had, in order to verify the account which had then been was refused
rendered; that on that occasion the plsuntiff's agent, '"rJ^toS?V.
Hrnning,
4 Beav. 835,
(a) 8 Beav. 179. considered.
400
1863.
Turner
V,
BURKIN-
SHAW.
Statement,
OASES IN CHANCERY.
employed by him to examine such account, ascertained
that the defendant had made a false entry of 70/. in order
to commit a fraud. The plaintiff's agent on that occasion
requested the defendant to leave the ledger, in order to
examine it, which the defendant refused to do, on the
ground that it contained the accounts of other persons.
In 1861 the plaintiff ceased to employ the defendant,
and shortly afterwards filed this bill. The ^interroga-
tories called on the defendant to specify precisely the
nature, form, heading, and every particular of the ac-
counts which the defendant had rendered to the plaintiff.
Argument. Mr. Bacon and Mr. W. Forster^ on behalf of the de-
"~" fendant, now moved for the production of these accounts,
which the plaintiff admitted were in his possession. The
defendant had not the means of answering the bill with-
out the production of these accounts. His affidavit was
as follows : —
" I have no copy, or duplicate, or draft of any of the
accounts so rendered, nor of the entries contained in the
said bankers' pass-books and cheque-books. Very many
of the vouchers, and all memoranda from which such
accounts were so prepared, have been mislaid, lost, or
destroyed ; and without having access to the plaintiff 's
bankers' pass-books and cheque-books, and to the general
accounts so rendered by me to the plaintiff aforesaid, and
now in his possession, I am wholly unable to defend
myself in this suit, and to put in a sufficient answer. . • .
I am desirous of giving the plaintiff the fullest and most
complete discovery of all the matters referred to in the
said bill, but it will be impossible for me to answer the
interrogatories filed in this suit, or to give any satisfac-
tory information or explanation of the plaintiff's affairs,
without seeing the said accounts and the said bankers'
pass and cheque-books."
The Court would not require from a man what he had
CASES IN CIIANCEHY.
401
not the power of performing, neither would it lay a trap
to induce a man to commit perjury.
In The Princess of Wales v. The Earl of Lwerpool{a\
where the bill stated two promissory notes, on an affidavit
by the defendant's executor that he had inspected the
first note, and he believed in order that his answer might
fully meet the case, that he ought before answering to
have an inspection of the second note, it was ordered that
the defendant should not be compelled jto answer till a
fortnight after the production of the second note.
In Taylor v. Heming (i), though Lord Langdale
thought he could not order the inspection, he approved
of the decision of the Princess of Wales v. Lord Livers
pool, and thought the proper course was to extend the
time for answering till the plaintiff had produced the
documents.
\_Jones V. Lewis (c), Halliday v. Temple (rf). Bate v.
Bate^e), were also cited.]
Mr. Malins and Mr. Fieliing Nalder^ for the plaintiff,
were not called on.
The Vice-Chancellor : —
This motion cannot be granted^ because the case is
entirely within the mischief pointed out in the case of
Halliday v. Temple, The plaintiff in this case accuses
the defendant, who had been his confidential agent, of
having delivered accounts, in which he knew that there
were not only mistakes but insertions of a fraudulent
character. The defendant says that these documents are
in the possession of the plaintiff, and the bill mentions a
document which is in the possession of the defendant,
and which will show that he committed a fraud. That
document is mentioned in the 29th paragraph of the
1B68.
TVRNBK
9.
BURKIN-
BHAW.
Argwnenf*
JudgmenU
(a) 1 Swanst. 114.
(») 4Beav.235.
(0) 2 Sim. & St. 242.
(d) S Be G. M. k G. 06.
(e) 7 Beav. 628.
402
CASES IN CHANCERY.
18tt.
TVKNBB
BURKXH*
bill. The plaintiff says that the ledger was produced,
and the result was that a false entry was discovered;
and liiat the defendant wilfully endeavoured to comoiit a
fraud. The plaintiff wished to have that ledger left
with him for examination^ but the defendant refused to
leave it. The defendant is the* person who^ having
refused to leave that document in the plaintiff's posses-
sion, now asks that he may not be called upon to answer
the bill until the plaintiff produces the accounts which
the plaintiff says are false. Why does the defendant
want this production? He says, in order that he may
put in a full and complete answer. But, in truth, he
wants them in order that he may shape his defence
from the information which he may obtain from them.
The motion must be refused with costs. I was rather
surprised at the language attributed to Lord Langdale
in Taylor v. Heminff, which I think cannot be taken as
the law of this Court. The law of the Court is as stated
by Lord Langdale in Bate v. Bate^ and probably was so
intended to have been stated by him in Taylor v.
Ilefninff,
Note. — The order in Jones v,
Lewis, was afterwards discharged
by Lord Eldon, 4 Sim. 324. A
similar application was also made
before the Vice-Chancellor of
England, JUI3' 12, 1833, and
refused by him : ^Milliffan r,
MitcMl, 0 Sim. 18U.
CASES IiN CHANC£KY. 403
RUSSELL t). THE LONDON, CHATHAM, AND ^1^
DOVER RAILWAY COMPANY. ^„^yie.
A HE defendants, the London, Chatham, and Dover Motion by a
Railway Company, moved to restrain two co-defendants before decreo
from prosecuting an action which they had commenced ^^ restrain a
* ° ^ ^ ^ co-defendant
against the company, or in the alternative that all pro- from prose-
ceedings might be stayed. action, or to
By an indenture of settlement, dated the 18th May, "^^^^^PJ^'
1854, and made between the defendant, John Scott thosuitonan
Russell, of the first part; the defendant, Harriette the relief
Scott Russell, of the second part ; and the defendants, bm^and%^tte
George Wynne and Francis Fuller, of the third part ; f^^jj*^^"
it was declared that a sum of 3000/. should be held by Refused with
G. Wynne and F. Fuller upon certain trusts for the
benefit of Mr. Jolm Scott Russell and Harriette his
wife, during their joint lives, and after the decease of
the survivor upon such trusts for the child or children of
the marriage as they should jointly appoint, and in de-
fault of appointment in trust for all the children in equal
shares.
Under a power in the settlement the 3000/. was laid
out upon the security of a second mortgage of a piece of
land in the parishes of Beckenham and Lewisham, with
a dwelling-house and buildings thereon, and by another
settlement dated the 3rd February, 1855, and made
between the same parties, the same land, dwelling-house,
and buildings were settled by Mr. John Scott Russell
upon trusts similar to those declared by the indenture of
1854, concerning the sum of 3000/. The settlement
contained a power for the trustees with the consent of
Mrs. Russell during her life notwithstanding covers
ture, and after her decease with the consent of Mr.
Russell during his life, and after the death of the suiv
404
CASES IN CHANCEUY.
1863.
RUSSBLL
V,
The Londov,
Chatham,
AND
Dover
Railway.
Statement.
vivor at the discretion of the trustees or trustee^ to sell
the premises.
The railway was to pass under the settled property
through a tunnel, and, prior to the construction of that
part of the line, by an indenture dated 20th December,
1861, between the mortgagor, the trustees, and Mr.
and Mrs. Russell, the company were to pay for the
rights of way, privileges, easements, land, heredita-
ments, and premises required by them, viz., 2500/. to
the mortgagor, 1200/. to the trustees, and under a
further agreement 300/. was to be paid to Mr. Scott
Kussell as compensation for permanent loss and in-
convenience which he might sustain from the works.
The conveyance was dated the 10th December, 1861.
In the course of the construction of the works con-
siderable damage was done to the house and buildings in
consequence of a subsidence of the earth ; and this bill
was accordingly filed by the children of Mr. and Mrs.
Russell, of whom some were infants, against the com-
pany, their parents and the trustees being also defendants,
alleging that the compensation proposed, viz. 3700/.,
was inadequate to make good the damage, and praying
that proper means might be taken for ascertaining the
value of the property, and the amount of compensation.
And secondly, that the trustees and the company, not-
standing the agreement of the 20th May, 1861, and the
conveyance of the 20th December, 1861, might be de-
creed to take such steps as might be necessary to ascer-
tain the proper amount of the purchase-money and
compensation, and that the company might be decreed to
pay such amount when ascertained; and that in the
meantime the company might be restrained from con-
tinuing in possession of the said hereditaments, &c., and
from continuing the construction of the said tunniel or
the said railway works.
Subsequently to the filing of the bill the trustees of
the settlement brought an action against the company for
the damage doDe to the property,
come on to be heard.
CASES IN CHANCERT.
The Buit had DOt yet
405
ises.
RUBBBLL
V,
AND
DOYBB
Railway.
ArgwH0nt,
Mr. Maltns, Mr. Cotton^ and Mr. Meadows White, for Chatham, '
the motion.
It was clear that the object of the action and the suit
were identical, or, at all events that suit included every-
thing which could be effected in the action. Under these
circumstances, it would be oppressive to allow the com-
pany, who were the real defendants in both proceedings,
to be harassed by a double litigation.
In the case of Edgecumbe v. Carpenter (a), the Master
of the Rolls, on the ground that the same solicitor was act-
ing for the plaintiffs in both the suit and the action, stayed
the action. That was really almost what existed here.
In Wedderbum v. Wedderbum (A), at the instance of
a defendant the Court restrained the plaintiff from pro-
ceeding in another court in respect of the same matter ;
that was, however, after decree. It was submitted, there-
fore, that the Court would stay the action.
The Vioe-Chancellor : —
There are objections to this motion which upon princi-
ple are insurmountable to a motion for an injunction made
by one defendant against another defendant to restrain
that co-defendant from proceeding in an action at law
where the application is made before decree. After a
decree all parties are actors, and the Court proceeds on
an ascertained view as to the rights of the parties.
But before decree, and upon an interlocutory applica-
tion by a defendant, I have never heard of the writ
of injunction being issued. In MUford on Pleading (c),
5th ed. p. 55, the rule on this point is stated in a note
referring to the case of Savory v. Dyer (d): "It is a
Judgment.
(a) 1 BesT. 171.
(b) 2 Beav. 203.
VOL. IV.
(c) Pp. 585, 586.
(d) Amb. 139.
E E
406 CASES IN CHANCERY.
1863. general rule that the writ of Injunction will not be
Russell granted unless prayed for by a bill which is already
Thb London, filed." But the note has this qualification — "or
^'^ AND^**' under special circumstances, which (the bill) the party
Dover applying undertakes to file forthwith." That exception
' is founded on the decision in M*Namara v. Arthur (a);
udgmen . ^^^ .^ ^^ ^^^ ^£ iPNamara V. Arthur the injunction
was applied for against the plaintiff on a representation
that a cross bill would immediately be filed. There is
no authority for granting a writ of injunction on the ap-
plication of one defendant against another, on an interlo-
cutory proceeding before the cause is brought to a hearing
and the decree is made.
Lord Eldon, in the case of Wright v. Atkyns (i), says,
" Generally, if the bill does not pray an injunction, the
plaintiff cannot move for an injunction under the prayer
for general relief; but if after a decree for an account
under a bill for foreclosure the mortgagor attempted to
cut timber, the Court would enjoin him, though there was
no prayer for that." Of course there could be no prayer
where one defendant was applying against another under
the circumstances referred to by Lord Eldon.
I should not have thought it necessary to refer to
these authorities but' for the arguments which have
been urged at the bar. The plaintiffs are persons, some
of them infants, filing a bill in this court against their
own trustees, who have entered into an agreement for
the sale of their land to the defendants, a railway com-
pany. The plaintiffs complain that that agreement was
made wholly ultra vires, and was improper ; and they ask
the Court to direct that, if the land is to be sold, it may
be sold in a proper way, and that, if compensation is to
be made, it may be made in a proper way. The bill
further complains that after this agreement by the defen-
(a) 2 Ball k B. 349. (b) 1 Yes. k B. 313.
CASES IN CHANCERY. 407
dants the trustees, to sell the plaintifTs land, their co-de- 1863.
fendaiits the railway company^ i^unst whom the plaintifis rusbbll
also complainy have under that agreement been proceeding ^^^ londok
in such a way as to inflict certain special injury on the Chatham,
property, in which the plaintiffs are interested, by the Dotbr
improper construction of the works, so as to do damage of ^ ^ ^
a very serious kind. It is plain that, whatever remedy '^wigmint,
the plaintiffs may be entitled to in respect of an injury of
that kind, it is a separate consideration, and apart from
the general question raised by the bill, in which they
complain that the trustees have made an improper agree-
ment for the sale of their land.
The first thing which the motion asks is an injunction
to prevent the action at law from going on, but the alter-
native is, that this action should go on and that the suit
should stop. Looking at the nature of the action, it cer-
tainly seems to be one in which damages may be recovered
for the special injury done by the improper construction of
the works which are mentioned in the plaintiff's bill ; and
I can see no reason why an action of this kind may not
with perfect convenience proceed, inasmuch as the plain-
tiffs are complaining a^nst both parties, the trustees and
the railway company.
The motion must be refused with costs, but without
prejudice to any case that may be made by a bill for an
injunction.
£ E 2
408 CASES IN CHANCERY.
1863.
JulylQ, 17.
18, & io. STRANGE v. FOOKS.
t entitled to This bin was filed by Susannah Strange, the administra-
the benefit of trix of Simon Strange, and it prayed for a declaration that
the securities
in the hands the estate of Simon Strange was not liable in respect
Therefore^*"'* of a bond executed by him and for an injuction. On
where a the occasion of the marriasce of the defendants James
creditor, whose °
debt was Strange and Sarah Young in the year 1839, by a settle-
bond of the * mentof that date, certain freehold hereditaments belonging
t^y^%en *^ ^^® intended wife, being a moiety of an estate called
as by a mort- Ridouts, at Holwell, Somerset, were conveyed to William
equitable life Caines and Isaac Clifford and their heirs on trust to pay
d^bt'orandhis ^^^ rents and profits to the wife during the joint lives of
wife in certain husband and wife to her separate use, then to the survivor
real estate and , ^ ,
policies of of the hueband and wife for life, and afterwards upon
assigned his Certain trusts for the benefit of the issue of the marriage.
notice'by^''''' On the 19th January, 1 852, James Strange the husband
hinaseif or the as principal, and his brother Simon Strange as surety,
trustees of the entered into a bond with the defendant Thomas Fooks,
who sdd under ^^ the sum of lOOO/., conditioned to be void on payment
li^w^that the ^^ Janies Strange and Simon Strange, or either of them,
surety was their or either of their executors or administrators, to
discharsred _
to the Thomas Fooks of the sum of 1000/. with interest at 5 per
security ?ost c®^*' ^^ ^^^ ^^^^ July then next, which sum was as was
Where ac- recited in the bond, the principal sum and interest which
quiescence is , * ' ,
relied ou, it was secured to the said Thomas Fooks in and by a certain
must be shown • j ^ n .
thattheperson indenture of mortgage.
acquiescing Qj^ |.j^g same day by a deed, recited as a deed of even
was aware of j j ^
the thing in date made between James Strange and Sarah his wife of
qnie^ced, and the one part, and the said Thomas Fooks of the other
such^ac^ies-^ part, the life estates in the hereditaments which were the
^^wh^ subject of the settlement, together with two policies of
Basttno, 7 Be assurance for 500/. each, which had been about a month
stii M?!, efore effected on the life of James Strange and on that
considered.
CASES IN CHANCERY.
409
of his wife respectively, were conveyed and assigned to
Thomas Fooks, upon truat, if default should be made in
the payment of the 1000/. and interest on the 19th July,
1852, of his own authority, and without any further
consent or concurrence of James Strange and his wife,
to sell the premises, and out of the proceeds repay himself
the principal money and interest. James Strange in a
distinct covenant covenanted to pay the same.
Simon Strange died in August, 1855, intestate, leaving
the plaintiff Susannah Strange his widow, who obtained
letters of administration of his estate.
By an indenture dated the 19th October, 1855, Tho-
mas Fooks by deed assigned to the defendant John
Hole the debt of 1000/. and interest, together with the
benefit of all securities for the same.
The trustees of the settlement of 1835, under the
power in the settlement, had sold the moiety of the set-
tled property, and distributed the proceeds amongst the
parties interested under the trusts of the settlement.
They had received neither from the mortgagee Fooks, nor
from his assignee Mr. Slade, a solicitor of Yeovil, who
with Mr. Vining had been Simon Strange's solicitor,
information of the existence of the bond, or of the deed
of even date.
On the 4th November, 1861, Hole, in T. Fooks's
name, commenced an action on the bond against the
plaintiff; and in the following December this bill was
filed to restrain the action. The plaintiff, in January
last, undertaking to give judgment in the action, as
administratrix, to be dealt with as the Court should direct,
the motion for an injunction was ordered to stand over to
the hearing of the cause.
The plaintiff charged that if the 1000/. secured by the
bond was not paid in July, 1852, when it became due,
Thomas Fooks was guilty of a breach of trust in not
realising the money out of the rents and profits of the
ises.
Stranob
Fooks.
Statement.
410
CASES IN CHANCERY.
FOOKS.
statement.
Argument,
settled estate, which were eufficient to satisfy the claim,
or if necessary by sale; that upon the assignment to
Hole it became his duty to enforce the payment, and that
their neglect, or the neglect of one of them, to carry into
execution the trusts of the deed of January, 1852, had in
equity discharged the estate of Simon Strange from all
liability in respect thereof.
The bill further alleged that the defendant Hole had
notice of the death of Simon Strange, but that neither
he nor Fooks gave any notice to the plaintiff, the ad-
ministratrix, of the existence of the bond ; and she was,
consequently, unable to realise the security. The bill fur-
ther charged, that by the neglect of the defendant to give
notice of the bond and of the assignment to the trustees .
of the settlement of 1835 the plaintiff had become de-
prived of the benefit of the indemnity to her husband's
estate, and that thereby the security had become lost.
The bill was amended, and further charged that the
defendant Hole in 1855 had constructive notice through
Mr. Slade, their common solicitor, of the breach of
trust which had been already committed by Fooks in not
realising the security.
The bill prayed for a declaration that the plaintiff and
the estate of her late husband were discharged from all
liability to the defendants under the bond.
The defendants in their answer denied that they were
under any obligation to give such notice to the trustees
charged in the btU.
Mr. Malins and Mr. Crachnall, for the plaintiff.
The rule of this Court, established by a long series of
authorities was, that where a creditor, either by doing
what he ought not to do or omitting what he was bound
to do, damages or destroys a security on which the surety
was entitled to rely, the creditor lost his remedy against
the surety. In the case of Watson v. Alcock (a), it was
(«) 1 S. & G. 310.
GASES IN CHANCERY.
411
held that the omission by the creditor to file a warrant
of attorney discharged the surety. In that case his
Honour said, " it was of the essence of the contract for
suretyship, that the surety should have the benefit of the
warrant of attorney." That case came before the Lords
Justices on appeal, and they affirmed his Honour's
decision (a).
In Straton v. Rastall(b)y it was held that where an
annuity bond granted by two became void by the neglect
of the grantee, in not registering a memorial under the
statute, he cannot receive back any part of the considera-
tion-money from the one known to be the only surety who
had received no part of it, though both joined in a re-
ceipt. On an argument on an equitable plea, in Watts v.
ShuUleworth{c\ it was laid down that in equity, on a
contract of suretyship, if the person guaranteed does
any act injurious to the surety, or inconsistent with his
rights, or if he omits to do any act which his duty
enjoins him to do, and the omission proves injurious to
the surety, the surety will be discharged. This doctrine
was affirmed on appeal by the Exchequer Chamber(£f).
In Ca^tfZv.£t£f/ifr(tf) the marginal note was in these terms:
— " If by the neglect of the creditor the benefit of some
of the securities for the debt is lost, the surety is pro
tanto discharged." A surety is entitled to the benefit of
all the securities taken by the creditor, whether he has
notice of them or not: Pearl v. D€acon{f)t See also
Law V. 2%e East India Company {g),
Mr. Greene and Mr. Locook Webb, for the defendants.
The assignments of 1852 and 1854 were perfect and
complete, and required nothing further to be done:
Voyle V. Hughes (A) : and if the assignments were com-
1863.
(a) 4 De G. M. & G. 242.
(h) 2 T. R. 366.
\c) 6 H. & N. 236.
(d) 7 H. & N. 353.
(«) 2 S. & S 457
(/) 24 Beav. 186.
C^) 4 Ves. 824—833.
{h) 2 Sma. k G. 18.
Argumtiit
412
GASES IN CHANCERY
1863.
Strangb
V,
FOOKS.
Argument,
Judgment,
pleted, no notice was necessary, and the rights of the
creditor were not affected by the omission to give notice.
In WhtaAy v. Bastow{a)y it was held that the omission
to obtain a stop order, an equitable assignment of the
debt having been made, did not discharge the surety,
neither would delay by the creditor in suing for the debt
discharge the surety. \Eyre v. Everett {b)y Gordon v.
Calvert {c)y were also cited. See Ex parte Mure{d)J\
Mr. C. Hall appeared for Mr. and Mrs. Strange.
The Vice-Chancellob : —
It is perfectly established in this Court that, if through
any neglect on the part of a creditor a security to the
benefit of which a surety is entitled is lost, or is not pro-
perly perfected, the surety is discharged.
The first transaction here relied on is that by means of
which Simon Strange, whose representative the plaintiff
is, became surety for his brother James, to a mortgagee
who had advanced money upon the security of a mortgage
of certain real property in which James Strange had an
equitable interest.
Simon, the surety, had a right to the benefit of the
mortgage security, and the right to have the mortgage
security dealt with by Fooks, the mortgagee, in such a
manner as that the benefit of it should not be lost. As it
has turned out, it appears that the benefit of the security
was, in fiu^t, lost by the neglect of the creditor to give
notice of the settlement of the claim to the trustees, who
held the property upon which the security was given.
An attempt has been made to show that Simon
Strange acquiesced in the non-performance of that act
which was necessary to perfect the security. But the
evidence does not, in my opinion, prove any such acquies-
(a) 7 De G. M. & G. 261-275.
(h) 2 Raw. 381.
(o) 4 Rass. 581.
(d) 2 Coz, 63.
CASES IN CHANCERY. 413
cence. The BoHcitors who give this evidence, especially i®03.
Mr. Vining, were the solicitors of Simon Strange in this stranub
transaction^ and also the solicitors of James Strange and fooks.
of Fooks the mortgagee. Their duty, especially to Simon j^^^^^
Strange and Fooks, was to have given notice to the
trustees of the settlement, and their neglect in not so
doing has occasioned the loss which has been the occasion
of this suit. But they say that Simon Strange acquiesced
in no notice being given to the trustees of the settlement.
The evidence, indeed, shows that James Strange, who
had an obvious interest in not allowing the security to be
known, was anxious that the trustees of the settlement
should not know of the security. But there is no suffi-
cient evidence that Simon Strange concurred in neglect-
ing to do what it was the duty of Mr. Slade and Mr.
Vining to tell him he ought to have done. It was the
duty of the solicitor to tell the surety that notice ought
not to be dispensed with ; but the evidence goes to this
— not that the surety consented to waive the notice,
but that the solicitor consented. This was the conduct
of the solicitor acting for the mortgagor.
In cases of this kind, where acquiescence is relied upon, '
it is essential that the person who acquiesces must know
exactly the nature of the thing to which his acquiescence
is supposed to be given. He must know that, and he
must know also the effect of his acquiescence. In this
case the solicitor who, acting on behalf of all these
parties, acquiesced in this arrangement, betrayed his duty
to the mortgagee and surety in not telling them what the
consequences were. In his second affidavit Mr. Vining
tries to make the case stronger. He says, '^ James
Strange was apprehensive that if notice was served " the
whole transaction would be known to the trustee.
^' Simon Strange concurred in thinking that it would be
prejudicial to his brother, by reason of his position with
the Caines and Dunning families, and joined with his
4L4
1863.
Stranob
V,
FOOKS.
Judgmentt
CASES IN CHANCERY. •
brother in requesting me not to serve any notice of the
mortgage on Mr. Gaines^ and it was solely in consequence
of such request that no notice was given to him of the
mortgage."
Now, if Simon did that, it must be shown, in order to
have the effect of acquiescence in a case of this kind,
that he understood what he was about, and that he under-
stood the effect of this acquiescence. Therefore, if the
only question before the Court is as to the nature of the
transaction, and how far the conduct of Fooks had dis-
charged Simon, I cannot, upon this evidence, hold
that the assets of Simon are now liable on this bond.
Whatever may be thought of the original transaction,
this case must be decided on the conduct of Hole, to
whom the mortgage was assigned. Mr. Fooks, who never
had his security perfected, and upon whom that duty lay
if he intended to hold the surety liable upon the bond, as-
signed the security and the bond in the year 1855 (more
than three years afterwards) to Hole.
I do not enter into the preliminary transactions, in
which an equal negligence and improper course of con-
duct is proved ; but it is proved that the person«who took
an assignment of this mortgage was bound, when he took
the assignment of the bond of suretyship, if he intended
to have the benefit of it, to see that everything was per-
fected which was necessary to keep alive his right.
He was bound to know tliat negligence on his part as to
the security to the benefit of which the surety was en-
titled, or any neglect on his part in not perfecting the
security, or anything that occasioned the loss of the
security, must release the surety. Acting under the
advice of the same solicitor, Mr. Hole did nothing.
There is no evidence that he had knowledge that
notice had been given, or that he considered the notice to
be in the least degree of importance. It seems to me
that this case comes within the general doctrine of the
CASES IN CHANCERY.
415
Court that, a surety being entitled to the benefit of
every security, where a security is lost through the negli-
gence of the principal creditor by his not having had it
perfected in the proper way, the surety is released to
that extent.
In the case of Wheatley v. Bastow, it was decided that
if there has been an assignment by a creditor of the
security and of the suretyship, and a fraud occurs, all
parties must bear the loss, and the surety is not discharged.
The Lords Justices in that case, which is a remarkable one,
seem to have rested their decision entirely upon this : —
That there was no bond of suretyship, but only an assign-
ment by a brother, and by a sister who was no debtor,
of property to which they were entitled in two moieties,
in order to secure a debt due by the brother; and there
was, therefore, a question only between the assignor and
assignee. This is not the case here. In that case
the surety was not held to be discharged, and the
Court held that the loss was occasioned by the fraud
of the solicitor. In the present instance I think the
plaintifTs case has been established. None of the
subordinate points seem to me to be of any importance
— as that Joseph Strange was a trustee and that he
had notice — because the fact is that Joseph Strange
is not proved to have been appointed a trustee of the set-
tlement— and that if there had been that proper notice, the
loss would not have occurred. Another subordinate point
seems to me to be equally incapable of being maintained,
namely, that the mortgagee was not bound to give notice,
because, as between the assignor and assignee, there was a
complete transfer of interest. That does not prevent a
fraud being conmiitted by the assignor, and if a fraud is
committed the principle of Voyle v. Htiffhes, and the
doctrine referred to is not applicable to the case.
There must be a decree that the estate of Simon Strange
is entitled to the benefit of the security; and the benefit of
1863.
Stramgb
r.
Judgment,
416
CASES IN CHANCERY.
1868.
Strakqb
V,
FOOKS.
Judgment.
the security appearing to have been lost through the negli-
gence of the defendants Fooks and Hole^ let an inquiry be
directed what loss had been occasioned to the estate of
Simon Strange by the loss of the security; the plaintiff to
have the costs of the suit up to the hearing against Fooks
and Hole.
Dec. 19.
Whei-e a
solicitor had
obtained foi a
client a
foreclosore
decree (who
had subse-
quently died,
and a decree
for administra-
tion of his
estate had
been made) the
Court, under
the 28th
section of the
23 & 24 Vic.
c. 127, made a
charging order
fur the costs of
the suit
against the
real estate of
the clieot.
Arywuent^
Judgment,
WILSON V. ROUND.
Mr. EDDIS appeared for the petitioner, a solicitor,
who asked under the 28th section of the Attorneys and Soli-
citors Act, 1860 (23 & 24 Vic. c. l-27,s. 28), that it might be
declared that his bill of costs might be charged upon certain
real estate, mortgaged to the client, as to wbichaforeclosure
decree had been made m favour of the client of the peti-
tioner. Some of the costs sought to be charged were those
of actions of ejectment and of indictments preferred against
certain persons who had entered forcibly upon the mort-
gaged property. The client had died, and a creditor's
suit had been instituted for the administration of his estate,
in which his real estates had been ordered to be sold, and
the proceeds, after paying incumbrances, applied in pay-
ment of his debts.
Mr. De Ghx^ for the executors of the deceased client —
After the decree in the creditor's suit the order asked for
cannot be made. At all events such order should be con -
fined to the costs of the foreclosure suit*
The Vice-Chakcellor. — The costs are a charge;
but the charging order can only include the taxed costs,
charges, and expenses of or in reference to the foreclosure
suit. Order that the amount of such acts be raised by sale
or mortgage of the property ; with liberty to apply.
CASES IDC CHANCERY. 417
1863.
DA VIES V. DAVIES. June SS ^ 24.
Jn April, 1859, the plaintiff Jane Davies, a single Gift by a
- n t .1-1 d««g:bter of a
woman, about twenty-two years of age, became entitled large part of
as residuary legatee under the wiU of Sarah Davies Jo her^fafhe?
to about 2107. in cash, 400/. standing to the account wtwidewith
of Sarah Davies in the National Provincial Bank at pearingtbat
Aberystwith, and two sums of 305Z. and 3757. stock, Bhortly after
standing in the name of Sarah Davies, or of her late Jtraty^ne
husband. and while the
Shortly after Thomas Davies effected a purchase of the acting as her
leasehold house in which he was living, in his own name, ^ regard^
with 2007., part of the said legacy. wnfiirifce m
On the oOth May, 1859, the sum of 4007. was trans- the sole reia-
ferred to the account of Thomas Davies. The plaintiff managing her
alleged that shortly after the purchase of the house the *^^ere a
plaintiff's father suggested to her that it would be expe- «^^ »** ""-
1. i. , n ^ :. 1 1 11 peached on the
dient for her to transfer the money and stock bequeathed ground of un-
to her into his name as a trustee. The plaintiff declined, inorder^to^^'
but a few days afterwards, she having been advised to *"ft^" r^,*
leave Aberystwith for the benefit of her health, her requires the
father told her she had better go to the National Pro- most unequi-
vincial Bank to draw some money for her travelling ex- Jha^the trans-
penses; and having done so, he left the house and shortly J^,^**" ^f^
afterwards returned, saying, ^'Mr. Jones [the cashier at stood by and
bank who had received the dividends on the stock] will t^^y and^de- "
be in the bank at two o'clock, and you must go up and o/^^^^*^,
siirn some papers at that time to change the stock from Hatch ▼.
1 i^^i^.i/., 1. HatchfdYeB.
the name of iSarah Davies before he can get the interest 296, con-
for you." By these representations the plaintiff was in-
duced to go with her father to the bank, for the purpose,
as she believed, of executing documents to enable Mr. .
418
1663.
Dayibs
V,
Dayirs.
Statement,
CASES IN CHANCERY
Jones to receive and pay to her the dividends on the
stock. At the bank Mr. Jones endeavoured to prevail
on her to transfer the moneys into the name of her father,
but the plaintiff positively refused to divest herself of
her property in the manner proposed. Mr. Jones after-
wards informed the plaintiff that she must, in order to
transfer the said moneys into her own name, sign some eight
or ten documents which were placed before her by him,
for, as she believed, that purpose. The plaintiff, who
was on the point of leaving Aberystwith by the steamer,
had not time to read all, but she read the first three or
four papers which were placed before her, and which pur-
ported to be transfers of stock into her own name ; and
concluding that the others were to the same effect, she
signed them all without having the purport or effect of
them explained to her. After the documents were all
signed Mr. Jones took up one of them and said, '^ By
this paper you have signed the 400/. that is in the bank
for your father," and he delivered over the paper to
Thomas Davies.
The plaintiff was shortly after married to her present
husband, and the bill alleged that prior to her marriage she
executed a settlement, by which her property was settled
upon herself and her husband during their joint lives, and,
after the decease of either, remainder upon the children of
the marriage. The plaintiff alleged that this settlement
was not in conformity with her instructions, inasmuch as
it placed the income of the property under the control of
her husband during their joint lives, and made no pro-
vision for her surviving him.
Joseph Davies had assigned his interest in the property
to trustees for the benefit of his creditors, who were made
defendants to the suit.
The bill prayed that this settlement might be rectified.
The bill also prayed that it might be decreed that the
plaintiff was entitled to the said leasehold house purchased
CASES IN CHANCERY.
419
with the said sum of 200/. , and also the sum of 400/., or
certain houses which the said Thomas Davies had pur-
chased with such moneys. •
Mr, Matins and Mr. O. Morgan for the plaintiflF.
This was a transaction between parent and child, and
could not be sustained in this Court. In Archer v. Hud--
8(m{a)y a niece, two months after Ae came of age,
and after her guardians had fully accounted to her, entered
into a voluntary security for her uncle, by whom she had
been brought up, but the Court set it aside. In Wright v.
Vanderplank{b)j and in Hoghton v. Hoghton (c), where all
the authorities were considered, the same doctrine was
laid down. See also Baker v. Bradly {d).
1803.
Dayibs
V,
Dayibs.
Argument,
Mr. Bacon and Mr. Piggott^ on behalf of the defendants,
contended that this case was not within the principle of
the authorities, and that the gift was valid.
The Vice-Chancellob : —
The main question is as to the validity of the transac-
tion by which the defendant Thomas Davies obtained
from his daughter the sum of 400£, which was deposited
in a bank at interest at the time of the transaction, and
to which he claims to be entitled as a gift from his
daughter.
This Court always inclines to hold that a gift is invalid
where it is made to a person who has great power or in-
fluence over the donor, unless it be shown in the clearest
and most unequivocal manner that the influence did not
subsist at the time of the gift. This rule is established
upon grounds of public policy which have been repeatedly
.Judgment.
(a) 7 Beav. 351.
{b) 8 De O. M. & G. 133.
(c) 15 Beav. 278.
(d) 7 De G. M. & G. 597.
420
CASES IN CHANCERY.
1863.
Judgment,
explained. Freedom from the pressure of influence may
be shown in many ways: it may be shown that^ from a
laudable motive, there had been a long-continued intention
often expressed to make a gifl ; or that the donor, per-
fectly understanding the nature of the transaction,
had resolved, perhaps by the advice of unbiassed friends,
to make the gift. In all cases where gifts have been
supported it has been shown that nothing equivocal
remained in reference to the existence of the influence.
In this case the father himself states the circum-
stances under which he stood ir relation to his daugh-
ter, and those circumstances show that the influence
arising from the relation of parent and child was subsisting
in full force at the time of the transaction. The relation
of guardian and ward, and the relation of parent and
child, are here exhibited in their most important points.
The father, in his answer, distinctly states that in the
months of April, May, and June, 1859, and until the
marriage of the plaintiff, he, being her father, assumed with
her consent the guardianship and direction of her affurs
and property, and that she looked up to him with im-
plicit confidence as the only relative she had who was of
an age or in a position to protect and assist her in the
management thereof. But he denies that by the means
in the bill mentioned, or by any other means, or in fact,
he acquired or exercised a complete influence and control
over her. It is, however, impossible to state more strongly
and distinctly the existence of the influence arising from
the relation, and its existence at the very time when the
transaction was entered into than he does himself. The
defendant states that the plaintiff implicitly confided in
his assuming the direction of the management of her
property. But it appears further that, at the very time
of this alleged gift of the 4002. being made, the defendant
had been dealing with the siun of 2002. in a way which,
taking his own account of it, cannot be considered as
CASES IN CHANCERY.
421
showing that he had discharged the duty which he under-
took to discharge towards his child. He said that he
considered the 200L to be his wife's property, though he
knew that his daughter claimed it f and he also states, in
Tarious paragraphs in his answer which relate to his con-
duct in reference to this sum, that his daughter considered
the money was her own; that she objected to a receipt
for it being drawn up in his name ; and that she wished
the property, which she knew had been purchased with
the money, to be assigned to her in her own name. All
that is stated by the defendant in his answer. With
respect to the conveyance of the property, he says that
his solicitor had, by his instructions, when he paid the
purchase-money to the vendor, prepared a draft assign-
ment of the said leasehold house and premises, and of a
small tenement adjoining thereto; and that such house,
tenement, and premises were, by his instructions, ex-
pressed in the draft to be assigned to the plaintiff for
the residue of the term of years subsisting therein ; but,
considering that the house had been purchased with
his wife's money, he instructed his solicitor to alter such
draft, and the solicitor, by his instructions, altered the
draft by inserting his name in the place of that of his
daughter as the purchaser under the deed, and that the
draft was altered without any instructions from the
plaintiff, and, he believed, without her knowledge or con-
sent.
As to what took place on the 30th May — the day upon
which the gift of 400/. was made — there is a conflict of
evidence in the accounts given by the daughter, by the
father, and by Mr. Jonee, who prepared the instrument
which is called a gift. No two of them concur in their
testimony respecting this transaction. The father says
his daughter expressed a wish to give part of her pro-
perty to him and her mother; and what is a very strange
thing to state as having been part of the conversation
VOL. IV. Fi*
1803.
Bayibs
V,
BA.TIES,
Judgment*
422
CASES IN CHANCERY.
1863.
Dayibs
V,
Bayies.
JudgnionU
upon the subject^ that his daughter asked him if he would
be satisfied if she gave him 4007. To ask whether the
father would be satisfied with 400/. shows a state of mind
not free from influence and control to the extent which
is necessary in cases of this kind.
As to what took place on the 30th May, at the bank,
when he went to see Mr. Jones, the manager of the bank,
respecting the transfer, there is contradictory evidence.
Mr. Jones's account is, that on the morning of the 30th
May the father and daughter came together to his private
residence, and that the daughter expressed an intention of
making a gift of 400/. and said she had come to ask if it
could be done. The father states the same thing, and
that that was the object of his going to the bank. The
daughter states that her father went to the bank alone
previously. The father states that he did not, but that
they went together, taking with them the deposit receipts,
and that Mr. Jones gave instructions as to how the trans*
action could be effectually carried out. This is a small
matter ; but in the evidence of the daughter she states
that she originally took the receipts and placed them upon
her father's desk, and, after having had her attention called
to the evidence of the other witnesses, she denies that she
took the two deposit receipts to the bank or handed them
over to Mr. Jones, but she says that she left them in the
desk at her father's house, and cannot state by whom they
were taken to the bank. It seems beyond a doubt that at
the bank she was told that she ought to sign her name in
order (as Mr. Jones stated) to make an effectual gift \
but her own statement is wholly inconsistent with that.
She says she was told by her father that, as executrix,
in order to obtain the interest on the moneys, it would be
necessary that the name in which they stood should be
changed, and that the moneys should be transferred into
another name. Looking at all the circumstances, and
the evidence of the parties, it seems to me that there
CASES IN GEANCERT.
423
is a natural^ coherent^ and consistent story told on the
part of the daughter. The plaintiff states that when Mr.
Jones told her she had signed away the 400/. to her
father she was quite startled, and that she believed that
what had been done could not be undone. The matter
was, therefore, allowed to rest. It is impossible to doubt
that at the time when the transaction of this gift took
place the influence of the father was in full force, and
unless it can be proved that all influence was removed
the gift is vitiated.
The evidence in order to support the gift should show, in
the clearest and most unequivocal manner, that the trans-
action was well understood by and was the deliberate and
voluntary act of the person who made the gift. That
evidence is wanting in this case, and consequently the
gift is one which cannot be sustained.
I cannot leave the case without referring to the law as
stated by Lord Eldon in the ease of Hatch v. Hatch {a).
Lord Eldon, upon a question in reference to a case of
guardian and ward, and not of parent and child, uses these
words: ^*This case proves the wisdom of the Court in saying
it is almost impossible, in the course of the connection
of guardian and ward, attorney and client, trustee and
cestui qve trusty that a transaction shall stand purporting to
be bounty for the execution of antecedent duty. There
may not be a more moral act, one that would do more
credit to a young man beginning the world, or afford a
better omen for the future, than if, a trustee having done
his duty, the cestui que trusty taking it into his fair, serious,
and well-informed consideration, were to do an act of
bounty like this. But the Court cannot permit it except
quite satisfied that the act is of that nature, for the
reason often given ; and in recollecting that in discussing
whether it is an act of rational consideration, an act of
pure volition uninfluenced^ that inquiry is so easily baffled
1863.
DATZB8
V.
DA.'VIBS.
Judgment,
(fl) 9 Ve8*292.
F F 2
424
CASES IN CHANCERY.
1863.
Daties
r.
Daties.
Judgment,
in a court of justice that^ instead of the spontaneous act
of a friend uninfluenced, it may be the impulse of a mind
misled by undue kindness or forced by oppression."
The doctrine of the Court cannot be more clearly
stated than in that case. There is wanting in this case
sufficient evidence to show the removal of influence on
the part of the father^ and that circumstance alone
vitiates the gift.
Declare that the gifts of the sums of 200/. and
400/. to the defendant Thomas Davies are invalid^ and
that he is bound to repay those sums to the trustees
of the settlement; that the settlement be rectified
as prayed, by conveying the property of the plaintiff to
trustees in trust for her separate use for her life, without
power of anticipation, with immediate remainder for her
children ; that the defendant Thomas Davies do pay all
costs of the suit, excepting so far as they relate to the
rectification of the settlement; and that he account for the
rents received by him, and be allowed 40/. for improve-
ments.
CASES IN CHANCERY. 425
18G3.
WROE V. SEED. ju/yi5.
1 HIS bill was filed on the 30th July, 1861, by some of Kxecutow and
the residuary legatees under the will of Thomas Wroe fp®art*toVell
dated in 1849. The testator made numerous specific gifts ^^^}^k an
of real estate, and devised all other his real estate and postponing
bequeathed all his personal estate to Edward Seed and Ave y^ears"^
Peter Wroe, their executors, administrators, and assigns, ?^^ directed
. *=> ' in such case
upon trust " as soon as they conveniently could after his to pay the
decease, to sell and convert into money all such parts of his tena™t"for
personal estate as should not consist of money or securities ^^^ offive **
for money, and all his real estate ; but he declared that y^'^* thoy
had paid no
notwithstanding the said trusts and conversion it should legacies,
be lawful for his trustees or trustee to postpone the sale ^count, ^^
or conversion of his said real or personal estates for such *^°"?J* ^o-
. . quently re-
period not exceeding five years from the time of his quested so to
decease as such trustees or trustee should deem expedient, vitii the
And until such sale and conversion the income should be cufnfed^***
paid to the person who would be entitled to the moneys jeniuneration
as if such conversion had actually taken place. Fcrvice^—
The testator directed that as to the proceeds of the sale the custs of^a^
after payment of the debts, &c., after providing for the adminLcr the
purchase of an annuity, and for payment of certain lega- trusts of the
cies, the executors should divide the residue as follows: —
One seventeenth among the children of the testatoi'^s
nephew John Wroe, and the remaining sixteen seven-
teenths among the testator's other nephews and nieces
except John Wroe.
The testator died in June, 1856. From the begin-
ning of 1860 the plaintiffs made numerous applications
for an account and payment of the shares, but without
success.
On the 1st June, 1861, the plaintifis' solicitors sent a
letter addressed to both defendants giving them notice
426
0ASE3 IN CHANCERY.
1863.
Wroe
V.
SB£D.
Statement,
that, unless they had the accounts they required within
one week, or a written assurance that such accounts should
be delivered within one week after such assurance, they
should give instructions to prepare a bill, and should afik
the Court to compel the defendants personally to pay the
costs of the suit. To this no answer was returned, and
on the 4th July the solicitors wrote again stating that
they had received instructions from their clients to
commence proceedings, and that they wrote that letter
for the purpose of affording to the defendants a further
opportunity of complying with the wishes of the parties^
and with the intention thereafter of throwing upon them
each, personally, the costs of the suit rendered imperative
by their refusal and neglect to render proper accounts.
No reply was returned to this letter.
The bill was filed on the 30th July, 1861, and a decree
made directing the usual inquiries and accounts.
By his certificate the chief clerk found that the executors
had received personal estate, not specifically bequeathed,
to the amount of 25,657/. lOs. 5(2., and had paid and were
entitled to be allowed sums totheamountof 23,813/. 15^. 9dL,
leaving a balance due from them of 1843/. 14«. 8^.
The items disallowed amounted together to 1177/.
10«. lid.
The defendant moved to vary the certificate by allowing
three small items, and also by disallowing two items, sur-
charge on the accounts, which the chief clerk had allowed,
to the extent altogether of 1233/. ISs. 8d.
The first of these items disallowed was a stun of 212/.
55., which Edward Seed claimed to retain for services
rendered by him to the testator in collecting the rents of
his cottage property, and for constant care and attention
bestowed on the testator himself and in the management
of his property both by himself and by Peter "Wroe.
He said that both defendants were repeatedly told by the
testator that they were to charge for their services.
The next item was a sum of 161/. 7«* 3</. retained by
CASES IN CHANCERY.
427
the other defendant Peter Wroe under similar circum-
stances.
The third item^ lOOZ., was a sum claimed by both
defendants for travelling and other expenses incurred in
collecting the rents of the testator's estate^ and in finding
out the yarious legatees.
There were also other small surcharges which the chief
clerk had allowed as to which the motion sought to have
the certificate varied.
18(».
Wrob
V,
Sbbo.
Statement,
Mr. Malins and Mr. Cadman Jonesy for the plaintifi^, Argument.
opened the case^ and asked that the executors might
pay the costs of the suit. This Court always took
an indulgent view of the conduct of trustees and execu-
tors, and never visited them with costs except in cases of
gross neglect. It was hardly possible to conceive a grosser
case of deliberate neglect than in this case. [They cited
Springett v. Dashwood (a), and Kemp v. Burn (J).]
Mr. Bacon and Mr. Streeten, for the defendants^ sub-
mitted that the executors were ignorant men, who were
not fully aware of the duties of their office. There had
been no breach of trust, nor was there anything of that
sort suggested. It was submitted, therefore, that the
Court would not punish the defendants' inexperience so
severely.
The Vice-Chancellor : —
The first question is as to the motion to vary the cer-
tificate so far as it disallowed the defendant's claim for
remuneration for their services, on the ground that the
testator agreed to allow such remuneration. I think,
upon the evidence, the chief clerk was right, and so far
the motion to vary it fails.
But I desired that the case should be heard on further
Judgment,
(a) 2Q\ff. 52K
(h) 4 Giff. 348.
428
CASES IN CHANCERY.
1863.
Wrob
Seed.
Judgment,
consideration before I disposed of the motion to vary the
certificate, because upon the question of costs there may
be circumstances of such laudable conduct on the part of
defendants who are executors as will justify the Court in
dealing tenderly with them with regard to a demand of
this kind ; and there certainly is here conflicting evi-
dence. Now, having heard the whole case, and having
ascertained what the conduct of these executors has been,
it seems to me to be a case of gross misconduct.
The will gave certain legacies, and then disposed of
the residue. The legacies given by the will were given to
persons described by the testator as classes — ^nephews and
nieces, and the children of nephews and nieces.
There is no statement anywhere which suggests that
there was any difficulty in finding the persons who were
entitled as legatees under the wilL It is very fairly
contended on the part of the executors that they could
not dispose of the residue until something was done as to
the payment of the legacies. Even if there had been
a difficulty in ascertaining the classes, there are in this
will peremptory directions by the testator with reference
to those who were entitled to the residue of his estate ;
and although he allows five years, in the discretion of
his executors, for giving the capital to the residuary
legatees, there is to be no delay in the payment of
the interest. Therefore, upon the death of the testator
the residuary legatees had a right to have all the legacies
provided for, or at least to have the income of their
legacies paid. Has that been done ? So far from
it, I find that, at the distancQ of five years from the death
of the testator, the residuary legatees, who had obtmned
not one farthing, made two applications before the bill
was filed, and the)' received most unsatisfactory answers.
It is said on behalf of these executors that they are
illiterate men, and that they cannot keep accounts. One
of them gives an extraordinary description of his
CASES IN CHANCERY.
429
capacity to keep accounts. He shows that he has a
capacity to keep his own accounts, but not a capacity to
keep trust accounts where he is to account for the pro-
perty of other people. Now^ if a testator appoints a
I)er8on to discharge the duties of an executor, inasmuch
as he is sworn to discharge his duties as executor, his
first duty plainly is, if he cannot keep accounts, to pro-
vide some one who can, because in this Court the first and
primary duty of every executor or trustee having money
in his hands to be received and to be paid is, that an ac-
count of his receipts and payments should be kept, to be
produced to those interested in the account when it is
properly demanded. In this case, up to the time when
the bill was filed no account that could be shown had
been made out. The bill was filed in July, and it is
stated that in the month of April preceding an attorney's
clerk was employed to make out an account, but he
could make out nothing that could be presented, and
nothing that is now relied on.
Here were executors with a very large estate; 11,000/.
of it is said to have been in advance, ready to be distri-
buted at the death of the testator. What conduct can be
more grossly improper than that of executors, who were
to pay legacies and to distribute the residue, with a di-
rection to pay the income of the residue immediately, but
who did not pay the income ; who can suggest no diffi-
culty as to knowing who the legatees were; who, for five
years after the testator's death left legacies unpaid, the
residue almost wholly undealt with, no account ready that
can be produced, and no account taken until this bill
is filed; and who, when this bill is filed^ bring for-
ward demands against the estate on their own behalf
which the Court has found it to be its duty wholly to
disallow. The questions to be disposed of with regard to
them now are, the question of the costs of this litigation,
and that of the interest on their balances. One part of
ISGS.
Judgment*
430
CASES IN CHANCERY.
186d.
Wbob
Sbbd.
Judgment,
the conduct of these executors, which their counsel has
endeavoured to show was laudable and discreet, was, that
each of them took 1000/. to his own house. One of them
says he kept this sum in gold, and applied it for no
purpose. They say that they kept these sums for the
purpose of paying legatees if they should expectedly or
unexpectedly come to demand any money. That is gross
misconduct. It is highly culpable and gross misconduct
for any executor who has a legacy immediately payable to
take into his own house money for the purpose of
paying it, and to keep it five years, there being no diffi-
culty m ascertaining who the legatee is, and producing it
only in consequence of a decree made against him by this
Court. On these sums of 1000/. each so improperly kept
in their own hands, these executors must be charged with
interest at 5/. per cent. The balances have been asceiv
tained by the chief clerk. Yearly interest on those balances
at 5/. per cent, must be paid; because, although some of the
residuary legatees are parties, all are not before the Court,
and the Court is bound to regard the interests of those
who are not here to protect themselves. They are
entitled to look to the Court for protection, and for the
receipt of what is justly due to them, arid that can only
be done by directing payment of interest at 5L per
cent. Inasmuch, however, as the testator seems to have
employed a country bank, and there was a sum in the
bank at his death, whatever interest has been received
(and the amount is easily ascertainable) the executors will
have the benefit of. But, because an executor finds the
money of his testator deposited to a large amount in a
country bank, that is no reason why, having legacies to
pay, and being directed immediately to distribute the
income of the residue, he should keep the money there
for years. Whatever interest they received in respect
of that money they will be entitled to. That seems to
be the strict justice of the case. Some grounds for indul-
CASES IN CHANCERY.
431
gence have been stated^ but really I do not see anything
in any of them that affords any palliation. It is no ex-
cuse that these executors are men in humble life^ because
honesty is as much a duty^ and I hope a practice, in
humble life as it is in a much higher station; and whether
his station be high or low, an executor who misconducts
himself in this Court must be dealt with exactly in the
same monner. These are defaulting executors, and execu-
tors who have misconducted themselves, and they must
pay the coats of all the litigation except so much as has
been occasioned by the entering into the pedigree. I
have some doubt even about that, because it is quite con-
sistent with anything that appears on the pleading that
these executors may have known this pedigree all along.
On the whole, however, I think I am bound to pursue the
ordinary course, which will be to relieve the executors
from the costs of proving this pedigree, and to give
them their costs in the ordinary way as between solicitor
and client of that investigation. I allow these costs on
this principle — ^that if there was any difficulty in ascer-
tiuning classes of residuary legatees their duty was to
have filed a bill, and to have it done under the direction
of the Court; and under the direction of the Court the
pedigree might have been ascertained, and they would
have been entitled to costs between solicitor and client.
1863.
Judgment*
432
CASES IN CHANCERY.
I80n.
July 10 i^U.
CoTenant by
husband and
wife to
settle << all real
or personal
estate,
property or
effects to
which the
wife or the
husband in
her right shall
by gift,
descent,
succession,
or otherwise
become
entitled—-
Held to
include
reversionary
interests in
Consols, which
fell in by the
death of a
tenant for life,
after the
decease of
both husband
and wife.
Graff ley v.
Hnmpage^
1 Beav. 40,
followed.
Re HUGHES'S TRUSTS,
Under an indenture dated in 1812, a sum of 10,0007.
stock was assigned to trustees by William Hughes, on
trust as to one moiety for liis grand-daughters, Sophia,
Caroline, Oonstantia, Sabina, and Emma Hewitt, in
equal shares, to be absolutely vested in and transferred
to them respectively, upon their attaining twenty-five or
marriage previously ; and in the event of the death of
any of them under twenty-five, or unmarried, remainder
to the survivors. The second moiety was given to the
trustees, on trust, as to one fifth part, when and in case
the said Caroline Hewitt should attain twenty-five, to
pay to the said Caroline Hewitt during her life the
interest and dividends thereon for her separate use, with-
out power of anticipation, and after her decease upon
trust to pay the said stock among her children.
Caroline Hewitt, in November, 1822, being then an
infant, intermarried with Nathaniel Dando, and by a set-
tlement executed on her marriage one fifth part of the
moiety of the sum of 10,000/. was assigned to trustees
for the benefit of the intended wife for life, and after her
death, as to two thirds and one third, upon trust for the
children of the marriage.
By a settlement made the 3rd June, 1856, previously
to the marriage of Adelaide Dando, one of the children
of the last-mentioned marriage, and Edward Hill, after
reciting that, upon the treaty for the said intended mar-
riage, ^* it was agreed that any property, of whatever
nature or kind (except as thereinafter mentioned), to
which the said Edward Hill and Adelaide Dando, or
either of them in right of the said Adelaide Dando,
should by any means become absolutely entitled
CASES IN CHANCERY.
433
should be settled and limited in manner thereinafter men- 186S.
tionedy and that for that purpose the said Edward Hill j70Hir6HEB'd
and Adelaide Dando should enter into the covenant Trustb.
thereinafter in that behalf contained. statement.
The covenant was as follows : — Edward Hill and Ade-
laide Dando " jointly and severally covenant and agree
with the trustees^ that if^ at any time or times during
the said then intended marriage^ they, the said E. Hill
and A. Dando, or either of them in her right, should by
gift, descent, succession, or otherwise howsoever, be-
come entitled to any real or personal estate, property, or
effects of the value or to the amount of 100/. or up-
wards, at any one time (other than and except interests
which should be restricted to the life of the said Adelaide
Dando, and which should be settled and limited to her
separate use and disposal), then, and in every such case,
the same should be forthwith conveyed, assigned, assured,
transferred and paid to the trustees or trustee for the
time being, so far as the estates or interests in such
future property would extend," upon the trusts therein
expressed.
The wife diedin 1859, leaving one child ; the husband
died in. 1^2. Mrs. Dando, the tenant for life under
the deed of 1822, died in December, 1862, and upon
her death several sums exceeding 100/. comprised in the
deeds of 1812 and 1822 became payable. The question
then arose whether these sums were included in the
covenant to settle after-acquired property. The trustees
paid the fund into court under the Trustee Relief Act.
A petition was thereupon presented by the trustees of
the settlement of Mr. and Mrs. Dando for payment to
them of the funds so paid in.
Mr. Greene and Mr. Shebbeare for the trustees.
The recital in the settlement clearly showed that it
was the intention of the parties that all sums of money
Argument,
434 CASES IN CHANCERY.
1808. (over 100/.) or other property to which the wife or her
Jiv HvauEi'a husband in his right should become entitled were to be
Tkusts. settled. This case was clearly covered by the case of
A rgument. Grafftey v. Humpage (a). In that case a sum of money by
an anterior instrument was settled upon the wife for life>
remainder to her children, remtunder as she should appoint,
and in default to her executors, administrators, or assigns.
It was held to be within the operation of the covenant.
The present case is not distinguishable from that case.
The same principle was laid down in James v. Durant{b).
In Blythe v. Granville (c) the Vice- Chancellor of England
acted on the same view. \Ex parte Blake {d) was also
cited.]
Mr. Matins for the administrator of the husband.
Where certain property belonging to the intended wife
either in possession or reversion is not included in the
settlement, unless by mistake, the only inference that
can be drawn is that it was not the intention of the
contracting parties that it should be brought into settle-
ment. This was the view acted on by Vice-Chancellor
^indersley in the case of Archer v. Kelly {e). His Honour
observed that the words "becoming entitled" meant the
husband becoming entitled by means of the wife's
becoming entitled, and not in respect of a right which
the wife had. The cases of Grafftey v. Humpage and
James v. Durant were not approved by the profession,
and the present Lord Justice Knight Bruce had intimated
his dissent from the doctrines laid down in these cases :
(fl) 1 Beav. 46. In Grafftey become entitled." In Ex parte
V. Humpage the words are, Blake the words are, " should at
** should at any time thereafter any time thereafter.''
during the coverture." In James {b) 2 Bear. 177.
T. Durant the words are, " should (e) 13 Sim. 190.
at any time thereafter." In (d) 16 Beav. 463.
Bliftlie V. Granville the words («) 1 Dtew. & S« 300, 308;
are, ^' should during coverture
CASES IN CHANCERY
435
Hoare y. Hornby {a) i Vice- Chancellor Kinderaley also 1883.
expressed himself dissatisfied (&) with the reasoning in HeYL^on^^*^
Blythe V. Granville, and indeed with Grafftey v. Humpage. Trusts.
In Otter v. Melvill{c) Vice-Chancellor Knight Bruce held Argument.
that a covenant in an ante-nuptial settlement, that all the
personal estate to which the wife shall become entitled
should be subject to the trusts of the settlement^ did not
include property to which, without the knowledge of the
intended husband or the trustees^ she was then absolutely
and immediately entitled.
It was submitted on these authorities that the funds
which had fallen in were not within the covenant^ and
therefore passed to the husband's representative.
See also Grey v. Stuart (rf).
Mr. JET. Shebbeare appeared for the other parties.
The Vice-Chancellor : —
I think the property is clearly within the covenant in
Judgm$nU
Note.— In Archer v. Kelly
Vice-chancellor Kindenley, re-
ferring to Blythe v. Granville («),
observed — "I certainly bad not
the smallest intention of inti-
mating any dissent from that de-^
cision ; and, indeed, my present
decision shows that I quite agree
in its soundness. The observa-
tions I made referred to one part
of the Yice-Cbancellor^s reason-
ing in that case which was as fol*
lows: — * The covenant, therefore,
phunly applies to the property
which the wife would become
entitled to when the coverture took
effect. The coverture was the fu*
(tt) 2 Y.&C.C.C. 121,129.
(J) Wilton v. Colvin, 3 Drew.
617, 624-5;
turity referred to. Immediately on
the marriage taking place the wife
became entitled to the property
during the coverture/ The reason-
ing, therefore, was that, inasmuch
as befoce the marriage the lady
was not entitled during the cover*
ture, and after the marriage slie
was entitled during the coverture,
this was such a change of condi*
tion with respect to her interest
in the property as brought it
within the operation of the cove-
nant : and it was cnly from this
portionjof the reasoning I ventured
to express my dissent."
(e) 2 De G. & S. 257.
(rf) 2 Giff. 398.
(e) 13 Sim. 190^
436 CASES IN CHANCERY.
1863. the settlement, and there must be a declaration that the
JReHuoHBs'B petitioners are entitled, and that the stock be transferred
T!l!l"- to them.
Judgment. The criticisms made on the case of Graffley v. Humpage
and James V. Durant are not, in my opinion, well founded,
and I do not feel myself justified on such grounds in
shaking the authorities of those cases, which, in my
opinion, are in accordance with the laws of this Court
1864.
Jubj 2.
Rails and
other chattels
which by the
tenns of the
contract when
placed on the
land became
the absolute
property of
the company,
the contractor
to have no
property
therein,
except the
right of using
them on the
land for the
purpose of the
works, except
on completion
of the line, as
a condition
precedent, the
plant was to
be giren to tho
contractor as
part considera-
tion, or if used
by iJie com-
pany to be
paid for—
Held, not
liable to be
taken in
execution for
the company's
debts.
BEESTON r. MARRIOTT.
X HE bill was filed by the plaintiff, who had contracted
with the company, the Manchester and Milford Railway
Company, for the construction of that part of the line
between Llanidlos and Llanguerig.
By the terms of the deed of contract it was stipulated
that the contractor should find and provide all the plant and
materials necessary for carrying out the contract, &c. ;
and *^ that from time to time, as and when any material
or plant whatsoever should be upon or brought upon the
site of the said works, or upon land adjoining thereto and
belonging to the company, then and immediately there-
ui)on the said materials or plant should become and be
the absolute property of the company, and be and be con-
sidered as in their possession ; and that the contractor
should have no property therein or in respect thereof, at
law or in equity, except the right of using the same
upon the premises of the company merely for the pur-
poses of the said works, and except that, if the contractor
should duly complete the whole of the said contract,
then after the full and due completion of all such works
CASES IN CHANCERY.
as a condition precedent, the company would give unto
the contractor, as a part of the consideration of his per-
formance of the said contract^ the said plant, unused and
unconsumed materials; the bringing of the said plant
and materials upon the said premises by the contractor,
upon the terms aforesaid, being one of the conditions for
the company entering into the said contract on their part;
and that if any work should be taken out of the hands of
the contractor by the company, in pursuance of the con-
ditions thereinafter referred to or otherwise on account
of any default of the contractor, then and in every such
case it should be lawful for the company, or any person
with whom they should contract, or whom they should
employ for the execution or prosecution of the same
work, to use and employ therein all or any part of the
said materials and plant, making only such compensation
therefor, to the contractor, his heirs, executors, or
administrators, as the principal engineer of the company
should think just, and should by writing under his hand
award to be paid."
The agreement further provided that the company
would, as the works proceeded, make monthly payments
to the contractor, upon the certificates of the engineer,
to the full amount of the work executed and materials
supplied, less five per cent., which was to be retained by
the railway company as a guarantee fund for the due
performance of the contract.
The works had been prosecuted and a considerable
portion of the line completed, and large sums had been
paid to the contractor on the certificate of the company's
engineer. There were upon the company's land large
quantities of rails, chairs, plates, &c., &c., used in the
construction of the works.
At the time of the issuing of the execution hereinafter
mentioned, the contractor had deposited upon the lands
of the railway company, for the purposes of executing
VOL. IV. G G
437
1S64.
Bbbston
V.
Marriott.
Statement.
438
CASES IN CHANCERY.
1864.
Bbbbtom
Marriott.
Statement
his contract^ large quantities of iron rails^ railway chairs,
fish-plates, plant and materials.
Messrs. Marriott & Jordan were the solicitors to the
company, and claimed from the company a sum of
5803/. 16^. 6d. for bills of costs, for which they had
signed judgment against the company. Upon this judg-
ment they on the 28th February, 1863, issued execution,
and under that execution the sheriff seized the iron rails,
railway chairs, fish-plates, and other materials, on the
ground that by virtue of the foregoing clauses of the
contract, coupled with the payments on account, the
legal ownership of the goods was absolutely vested in the
railway company, and that the goods were therefore
liable to be taken in execution.
The plaintifi^ thereupon filed a bill for an injunction to
restrain the sheriff from selling the goods seized, praying
for a declaration that neither the defendants, the railway
company, nor Messrs. Marriott & Jordan, had any right
or interest therein, except subject to the right of the
plaintiff to use and employ the same in the construction
of the works, and also subject to his right to such as
should be unconsumed on the completion of the con-
tract.
A motion for an injunction was made in March, 1863,
but was directed by his Honour to stand over till the
hearing of the cause. The defendants agreed to accept
notice of motion for a decree, the sheriff in the meanwhile
to withdraw from possession.
Argument. Mr. Bacon and Mr. Bovill appeared for the plaintiff,
*"~ and contended that the chattels though in one sense as
between the plaintiff and the company, they belonged to
the company, yet as between the company and third
persons the company had no absolute property in them.
Their title was subject to the rights of the plaintiff, both
as to the use of them for the purpose of the works, and
CASES IN CHANCERY.
439
Argume^it,
the right to them on the completion of the works. It 1864.
was submitted, therefore, that the plaintiff was entitled.
Mr. Matins and Mr. Dickinson^ for the execution credi-
tors.— Under the terms of the contract, the moment the
contractors brought plant or materials on the company's
ground they became the property of the company both
at law and in equity.
The contractor's right to use the plant, &c., and to the
surplus after the completion of the works, for the purpose
of the works, did not cut down the absolute title of the
company, but simply gave to the contractor a right of
action for the breach of the covenant.
Secondly, the company had in fact made large payments
which gave them an equitable title.
Mr. Locock Webbi for the company, took the same
view.
Mr. Speed appeared for the sheriff.
The V1CE-CHA.NCELLOR: — Judgnusnt.
The question in the cause is, whether the defendants
Marriott and Jordan, who are creditors of the railway
company (also defendants), are entitled to take in execu-
tion certain rails and other chattels which, under an exe-
cution issued by them as creditors of the company, have
been taken in execution by the sheriff.
The plaintiff contends that these rails and other chattels
are not the property of the company in such a sense as
that the company themselves, or any creditor of the com-
pany, can deal with them as the separate and absolute
property of the company, so as to take them in exe-
cution.
The right must be governed by the stipulations in the
contract.
It has been argued, however, on behalf of the creditors
G G 2
440
CASES IN CHANCERY.
1864.
Bbbstom
V,
Marriott.
Judgment,
of the company, and of the company itself, that, according
to the stipulations of the contract, these rails and other
chattels, when placed where they now stand upon land
taken by the company for the purposes of their under-
taking, are by the express terms of the contract the
absolute property of the company, and that the present
plaintiff has no interest nor right of property whatever in
them. It is true the contract says that, placed upon the
ground, these chattels shall be the absolute property of
the company, and that the plaintiff shall have no property
in them ; but immediately afterwards follow three excep-
tions, qualifying that absolute right of property in the
company which the first words of the contract give to
them. These exceptions are, first of all, that all these
chattels are to be under the dominion of the plaintiff,
who has the right to use them; that they shall be under
his dominion for the purpose of using them; that so much
of them as shall not be used for the purpose of con-
structing the railway when he has completed his contract
shall then be given to the plaintiff as part of the con-
sideration for performing the contract There is a
further stipulation that if, instead of the plaintiff using
those chattels, circumstances shall occur to entitle the
railway company to use them, the railway company
using them shall make compensation to him in respect
of them. It seems, therefore, that that absolute right of
property in the company which is given to them for the
purpose of preventing tlie chattels being taken in execu-
tion when on the ground of the company by any creditor
of the plaintiff is qualified by these important stipu-
lations. The right of using them; the right, as to
some of them, of becoming absolutely possessed of them;
the right to demand compensation from the company U
the company shall use them, so qualify the right of the
company, and give such a right and interest to the plain-
tiff in these chattels, that they cannot be considered the
CASES IN CHANCERY.
property of the companj so as to be taken in execution
by any creditor of the company. They are chattels upon
the ground of the company dedicated to a particular pur-
pose, in which purpose both the plaintiff and the de-
fendants are interested as to the use of the chattels ; and
as to the surplus, they are ultimately to become the
absolute property of the plaintiff. Chattels in that
situation cannot be taken in execution. The plaintiff is
entitled to the relief he prays. The defendants who
have thus, in my opinion, improperly taken these chattels
in execution, and the railway company, who join the
defendants in claiming the chattels as the absolute pro-
perty of the railway company, must pay the costs of the
suit.
441
1864.
Bbbston
Marriott.
Judgment
442
CASES IN CHANCERY.
18(13.
July 8^9.
The trustee
of a sum
of stock, being
beneficially
entitled to one
moiety undi-
Tided, assigned
his interest to
a mortgagee,
who placed a
dUtringas on
the moiety.
The trustee
afterwards
sold out
a moiety and
absconded.
On a bill by
the cestui que
trust of a
moiety, the
Court iteld
that he was
entitled to
the remaining
moiety, but
gave the
mortgagee his
costs.
WILKINS V. SIBLEY.
JJY a settlement dated the 9th and 10th October, 1828,
executed on the marriage of Mr. and Mrs. Draper, reciting
that a sum of 2700/. Three per Cent. Bank Annuities,
had been transferred into the names of Francis Wilkins
and Joseph Wilkins, as trustees, it was thereby declared
that the said sum of stock, together with certain other
property, was transferred to them upon trust, as follows,
viz., after the solemnization of the marriage to pay the
income to the intended wife during her life for her sepa-
rate us€, and from and after her death to permit the
intended husband to receive one moiety of the income
during his life ; and if there should be no child of the
said marriage, on trust, after the death of the said in-
tended wife, and during the life of the said intended hus-
band, to pay the other moiety of the said income to Ann
Wilkins, the mother, " if she should be then living; and
if not, then that the said Francis Wilkins and Joseph
Wilkins should retain the same moiety of the said trust-
moneys for their own use in equal shares;" and after
the decease of the said wife and husband, then upon
trust to pay the whole of the income to Ann Wilkins for
her life, "if she should be then living; and if not," then
that the said F. Wilkins and J. Wilkins should retain
the whole of the said trust-moneys for their own use in
equal shares.
Mrs. Draper died in July, 1845, without ever having
had any issue.
Joseph Wilkins, the trustee, died in November, 1846,
leaving four infant children, and having by will be-
queathed all his personal estate to the plaintiffs, Letitia
Coles Wilkins and John Bailey, whom he also ap-
CASES IN CHANCERY.
443
pointed his executors and trustees, upon certain trusts
for the benefit of his wife and children ; and in case of
all his children dying before their shares became vested
respectively^ bequeathed all his personal estate to the
said Francis Wilkins. Ann Wilkins died in 1848 ; and
soon after her death Francis Wilkins sold out a moiety
of the stock, and divided the proceeds between himself
and the plaintiff, leaving 1350/. Three per Cent. Annui-
ties standing in the name of Francis Wilkins.
In January, 1855, Francis Wilkins mortgaged certain
real estate to the defendant Robert Sibley to secure
700/. and interest, and in April 1851 he assigned to
Sibley one moiety of the sum of 1350/. stock, by way of
further securing the 700/., and a further advance of 300/.
In October, 1851, the moiety was again charged with a
further advance of 250/.
On the 5th May, 1851, the defendant Sibley obtained
a distringas on a moiety of the sum of 1350/. Bank
Annuities. F. Wilkins, in July, 1852, without the know-
ledge of the plaintifis, sold out the sum of 675/., being
one moiety of the said sum of 1350/. Three per Cent.
Annuities, and applied the proceeds of the same to his
own use. He afterwards absconded.
James Draper, the husband, in May, 1854, presented a
petition to the Court, upon which W. Edwards and the
defendant R. Sibley were appointed trustees of the inden-
ture of the 10th October, 1828, and were ordered to
transfer the said sum of 675/. Three per Cent. Annuities
into court; it was further ordered that the dividends of the
residue, after payment of costs, should be paid to James
Draper for his life, or until further order ; also that no
part of the said sum of stock should be sold, transferred,
or disposed of " without notice to the executors of the
siud Joseph Wilkins, and to the defendant Robert Sibley
or his executors ;" and it was declared that, " subject to
any right which the defendant Sibley might have under
1S68.
WlLKIMS
V.
SiBLBT.
Statement.
444
CASES IN CHANCERY.
1863.
Statement.
or by virtue of any mortgage security thereby vested in
him/' so much of the said 675/. as should be sold as afore"
should be replaced out of a share to which F. Wilkins
should be entitled in a sum of 2501, part of the said
trust property.
By payment of costs the sum of 675/. was subse-
quently reduced to 612/. 3*. Three per Cent Annuities.
James Draper died in 1860, and upon his death the
plaintiffs claimed to be absolutely entitled to the sum of
612/. stock. The defendant Robert Sibley claimed the
stock as assignee of Francis Wilkins. The bill was
filed for the administration of the trusts of the settle-
ment.
The plaintiffs charged by their amended bill, "that
F. Wilkins, when he sold the said 675/. Bank Annuities,
intended to sell the moiety of the said 1350/. Bank
Annuities to which he was entitled, and not that to
which plaintiffs were entitled, and as evidence thereof
they showed that in a letter from the said F. Wilkins to
the said defendant Sibley, without date, but received by
the defendant in July, 1858, and now in defendant's pos-
session, the said F. Wilkins admitted that fact.
The defendant Sibley by his answer submitted that,
if the plaintiffs had placed a distringas on their moiety of
the fund, which they had neglected to do, the whole
sum would have been protected from the improper
transfer. He also adduced evidence to show that
F. Wilkins intended to have sold out the whole sum if
he had not been prevented by the distringas.
Argunutfit, Mr. Greene and Mr. Cracknall for the plaintiff. — The
principle to govern this case is well settled, that where
a trustee, having a beneficial interest in part of the estate
of which he is trustee, is guilty of a breach of trust, his
cestui que trust is entitled to have the trustee^s share
applied to make good the monies that have been mis-
CASES IN CHANCERY.
445
applied: Morris v. Livie{a\ In the case of Brandon v.
Brandon (jb) the Lords Justices by their decree ad-
mitted the principle laid down in Morris v. Livie,
If this were the true view of the law, the plaintiffs
had a lien on the stock, and no notice or distringas could
affect it. The j)urchaser took it subject to all prior
equities, and could not set up his purchase against the
plaintiff's right: Greswold v. Marsham{c), Toulmin v.
Steere{d), Parry v. Wright{e)y Brown v. Stead(f).
Mr. Bacon and Mr. Walford for the defendant — In
this case it was quite clear the defendant preserved the
fund.
The defendant had done all in his power to perfect his
security, and the plaintiffs had done nothing. In Etty v.
Bridges{g\ where there was no trustee to whom notice
could be given, because a mortgagee of stock did not by
distringas or otherwise attempt to perfect his security, a
person who, without notice of his incumbrance, advanced
money on the stock and obtained a distringas, was held
to have priority. Ca^e v. James (h), Mocatta v. Murga-
troyd{i)y Watts v. Symes (J\ Kekewick v. Manning (k),
Gregg v. Abbott(J)y Irby v. Irby{m), Lewin on Trusts (n).
The Vice-Chancellor : —
If a trustee who has also himself an interest in the trust
fund assigns his beneficial interest therein, and then
conmiits a breach of trust by abstracting any part of the
trust-fund, the other cestuis que trust, as against the
ises.
Argument,
Judgmtnt*
(a) 1 Y. & C. C. C. 380.
\h 3 De G. & J. 824.
(e) 2Ca8e6inCh.l70; Jarman'8
Byth. 142.
(d) 3 Mer. 210.
(e) lSim.& St. 369; 5 Russ.
142.
(/) 5 Sim. 635 ; 2 David. 249.
iq) 2 Y. & C. C. C. 48«— 494.
{h) 3 De G. F. k J. 256.
(t) 1 P. Wms. 393.
(J) 16 Sim. 640.
(*) 1 De G. M. & G. 176.
(I) Llojd & G.tem. Sag.246,
251.
(m) 25 Beav. 632.
(») Page 172.
U6
CASES IN CHANCERY.
186S.
WiLKINS
Sibley.
Judgment,
assignee of the trustee's beneficial interest, have a clear
equity to have the fund under the control of the Court
applied to make good that breach of trust. In the case
of Morris v. Livie (a) that principle was established, and
it is a doctrine recognised bj many anterior cases. In the
case of Hopkins v. Gowar {b) the same question occurred.
The question there was as to a devastavit. Sir A. Hart
says, ^' If an executor assigns his legacy and afterwards
is guilty of a devastavit^ the Court will lays its hand on
the legacy, disregarding the assignment Even if he
was a stranger, the assignee of such a legatee takes only
what the decree shall adjudge to him; and if an executor
misconducts himself so that when the accounts are finally
wound up he is subject to costs, the assignee of his
legacy must bear the consequence."
According to that view of the law, at the time when
the defendant Sibley proceeded to put a distringas on the
stock, the stock upon which he was going to apply the
distringas was subject to the equity claimed by the bill
That proposition cannot be questioned. But the argu-
ment here has turned principally upon the effect of the
distringas. I have been unable to see upon what possible
ground the distringas in any degree relieved the fund on
which it was placed from the equity which attached to it
before the distringas was issued. The effect of the dis-
tringas is notice; the object of it being that the fund
should not be touched without the claim of tlie person as-
serting being discussed. In the case cited, the view of
Lord Justice Knight Bruce would seem to be that a rfw-
tringas has much higher operation than notice upon a fund
in the trustee s nands, because a distringas makes it impos-
sible that a fund should be dealt with at all; where there
is a distringas on stock, the Bank of England gives notice
(a) 1 Y. & C. C. C. 380.
(b) 1 MoU. 561.
CASES IN CHANCERY.
447
to the issuer that unless he takes proceedings in a short
time to assert his right the distringas will be disregarded.
But a trustee who has received notice has no right to say
that, unless the party files a bill to assert his claim, the
notice shall be disregarded ; and any trustee who should
say that would still remain liable to the consequences of
notice, and his requisition to take proceedings might be
disregarded. Therefore, but for the dicta referred to
I should not have thought that the distringas or notice
could have affected the right. No doubt great weight
is due to observations made by the learned judge, and,
although I do not find in that case that the other Lord
Justice took the same view, still the opinion so expressed
carries with it the weight which is justly due to it.
The purpose of a distringas is to prevent a fund being
dealt with without the person who issues it having an
opportunity of asserting his claim. Here, then, it seems
to me the fund in question was clearly liable to the
equity of the plaintiff at the time when the defendant
Sibley went to the Bank with this distringas.
It has been said that the effect of a distringas is pre-
cisely the same as if this fund had been taken out of the
name of one trustee and put into the name of another
trustee. If that had been really done, other considera-
tions would arise ; but, practically, the distringas had no
such effect; the effect was to give to Sibley an oppor-
tunity to establish his right to the fund in a court of
equity.
It was the duty of the defendant Sibley to see, he
being entitled to half the fund, that he took his assignment
subject to the equity of the plaintiff. A distringus has
no effect whatever as against the assignor ; but the party
must take subject to the same equity as before. The
assignment can only be taken as operating like other
deeds between assignor and assignee.
1S63.
WZLKINB
V.
SiBLBY.
JudgmetU,
448
CASES IN CHANCERY.
1863.
WiLKINS
V.
Stblby.
Judgment,
On a full view of the whole case I must hold that the
effect of a distringas was not to take away the equity
which so existed in another person^ in respect^ not of
that share^ but of the other share.
Then it is said, the defendant's diligence has preserved
the fund — that but for him there would be no fund at all
for the adjudication of the Court ; but I am at a loss to
know what right the defendant has to half the fund.
Certainly he is not entitled to the whole fund : then by
what right is he entitled to half? It may be said that
he has not been acting for his own benefit, but for the
benefit of the plaintiff himself. Still, the argument,
though it fails on the main question, is yet entitled to
someweight on the subject of costs, though the fundremains
subject to the equity of the plaintifiT. Upon the question of
costs the case stands thus : — Unless the fund had remained
in court this equity could not have been asserted at all.
But it is through the act of the defendant that the fund is
in existence. I do not think that, where a bill is framed
with a view of having the rights of the plaintiff esta-
blished, I can very well saddle the defendant Sibley
with the costs of the suit so far as it relates to his
adverse claim. There is no reason certainly why he
should have placed the distringas upon the whole fund.
But, looking at the fact that he has done something which
has preserved the fund, I should be dealing hardly with
him if I were to make him pay the costs. The case of
of Toulmin v. Steere is said to have no application in this
case, and it has indeed been said that that case is not the
law of the Court; but it is of great importance that cases
should not be shaken and their authority weakened.
There is nothing in Lord St. Leonards' great work
upon vendors and purchasers to impugn the authority of
Toulmin v. Steere, although the decision was given
against his own argument and that of Sir S. RomiUy.
CASES IN CHANCERY. 449
I think the case is clearly in favour of the plaintiff^ ^^\
and at the same time that there is no case to deprive the
defendant, who has been a diligent assignee, of his
costs. , .
B
COOPER V. GOSTLING. •^•^J', V>' ">
19.
Y his will, dated in 1844, Edward Gostling, the tes- Where a tea-
tator, devised all those eight acres of land situate in land^to^hir
Watlington, in the county of Norfolk, unto his wife fo^^^J?^^"^
Mary during the term of her natural life, remainder to remainder to
John Gostling and Elizabeth his wife, their heirs and Elizabeth his
assigns for ever. Z^^^^-^
The testator died the same year. **»e life of the
,_. T-r,! tenant for life,
Shortly after the testator s death, the Lynn and r^ly conveyed the
Railway Company served a notice that they required notacknow-*
the land devised by the testator's will, for the purposes ^©f^ed to a
•^ ' JT r ruilway com-
of their Act. Ultimately an arrangement was come to pany— ^c/rf,
by which Mary Gostliug, the tenant for life, and John interest was
and Elizabeth Oostling, agreed to sell the land to the TJc^iononhe*'
company for the sum of 900/. On the 28th April, lands Clauses
, Consolidation
1846, by an indenture of that date between Mary Gost- Act, and
ling and John and Elizabeth Gostling of the one part, company,
and the railway company of the other part, it was
witnessed as follows : —
" We, Mary Gostling, of &c., and John and Elizabeth
Gostling, of &c., in consideration of the sum of 900/. paid
450
CASES IN CHANCERY.
1863
Statement,
to U8 pursuant to the Lynn and Ely Kailway Act, 1845,
by the Lynn and Ely Railway Company, incorporated by
the said Act ; and I, Elizabeth, the wife of the said John
Gostling, for the considerations aforesaid, do, and each
and every of us doth, according to our respective estates
and interests therein, hereby convey to the said company,
their successors and assigns, all that piece or parcel of
arable land,' containing 8a. Or. 29p., more or less, bounded,
&c., together with all ways, rights and appurtenances
thereto belonging, and air such estate, right, title, and
interest in and to the same as we or any or either of us
are or is or shall become seised or possessed of, or are or is
by the said Act empowered to convey To hold the premises
to the said company, their successors and assigns for ever,
according to the true intent and meaning of the said
Act."
The deed was in the form set forth in the Schedule to
the Lands Clauses Consolidation Act, 8 & 9 Vict. c. 18,
and was in pursuance of the 7th section of the Act. It
was signed and delivered by the three parties therein
mentioned, but was not acknowledged by Mrs. Gost^
ling. The purchase-money was invested in the sum of
914/. 2s. Sd. Consols, in the names of Mary Gostling,
John Gostling, and James Baven ; and by an indenture
or deed of trust, which was executed by Mary Gostling,
John Gostling, and James Baven alone, but was not
executed or assented to by Elizabeth Gostling, it was
declared that the dividends should be paid to Mary Grost-
ling for her life, and after her decease that the stock
should be transferred to and to the use of John Gostling,
his executors, administrators, and assigns.
John Gostling died in November, 1852, having by his
will, dated the 21st July, 1841, devised all his lands and
hereditaments, in the county of Norfolk, with the appur-
tenances, and all his estate and interest therein, with the
rights, members, and appurtenances thereto belonging,
CASES IN CHANCERY.
451
nnto his wife Elizabeth Gostliiig, and her assigns, to
hold the same to her for her life ; and after her decease he
gave and devised the said lands and hereditaments unto his
son, the defendant Samuel Gostling, to hold the same
with the appurtenances unto the said Samuel, his heirs
and assigns for ever. He bequeathed all his personal
estate of every description to his said wife, Elizabeth
Gostling, whom he appointed his sole executrix.
Elizabeth Gostling survived her husband; she made
no disposition of real estate, but by her will dated 6th
February, 1850, bequeathed all her personal estate to
her two sons Samuel and John, whom she also ap-
pointed her executors, upon trust, for all her children
who should attain twenty-one, or die under that age
leaving issue, share and share alike. Samuel Gostling
was her heir-at-law.
The tenant for life, Mary Gostling, died on the 5th
January, 1858. On her death, Samuel Gostling claimed
the trust fund as land. The other children of Elizabeth
claimed to be entitled to share therein, as being personal
estate. In 1860, Samuel, the heir, became bankrupt,
but his assignees disclaimed.
The 7th section of the Act, 8 & 9 Vic. c, 18, is as
follows : — " It shall be lawful for all parties being seised,
possessed of, or entitled to, any such lands or any estate,
or interest therein, to convey or sell, or release the same
to the promoters of the undertaking, and to enter into
all necessary agreements for that purpose ; and particu-
larly it shall be lawful for all or any of the following
parties so seised, possessed, or entitled as aforesaid, so to
sell, convey, or release (that is to say), all corporations,
tenants in tail or for life, married women seised in their
awn rigkty or entitled to dower, &c., and the power so
to sell and convey or release as aforesaid, &c., may law-
fully be exercised by all such parties, &c. ; and as to
1863.
statement
4d2
CASES IN CHANCERY.
1663.
such married women, whether they be of full age or not,
Cooper as if they were sole and of full age," &c.
G08TLIM0. ^^® ^^^^ ^®s fi^®^ ^y 0^6 of the children of Elizabeth.
Aryument,
Mr. JMalins. — The interest of Mrs. Gostling was
clearly that of a married woman seized in her own right,
and, if so, was within the Act. It was true that her
husband was jointly seized with her, but that did not
cut down her right If she was not seized in her own
right, what was her interest ? But if she were, the deed
under the operation of the 7 th section effected a conver-
sion of the land.
Secondly, if not converted under the Act, by the
election of all parties the proceeds of the sale were
treated as personal estate.
\_I)/e V. Daubuz (a) was cited.]
Mr. BacoUy Mr. Craiffy and Mr. fF. H. Terrell^ for
the heir. — The 7th section contained no words authorising
the disposition by a married woman, of an interest of
this nature, by a simple deed without acknowledgment.
Mrs. Gostling was *^ not a married woman seized in her
own right." She and her husband were tenants by
entireties of the reversion in the land ; her husband had
not any right, as against her, to alien any part of the
land; but on his death in her life-time the entirety
belonged to her (J). She was not '* seized" during the
life-time of Mary Gostling, because there can be no seisin
of an estate not in possession. The deed, therefore, was in-
operative under the Lands Clauses Act as against the
wife, and, not being acknowledged, it was a mere nullity.
There was, therefore, no conversion of the land into money,
but the purchase-money remained impressed with the
{a) 3 Bro. C. C. 595. {b) Preston on Abstracts, 39, 41, 43.
OASES irC CHANCERY.
character of land, and, Mrs. Goatling having died intestate
as to realty, it passed to her heir-at-law. [They cited Ex
parte Cramer (a), and Midland Raiboay v. Onoin (i).]
There was no evidence to show any acquiescence on
the part of Samuel Gostling that the consideration for
the purchase should be treated as money.
Mr. Graham Hastings appeared for the assignees.
The Vice-Chancbllor : —
This bill is framed with a view to establish the right
of the plaintiff to money produced by the sale of land
to a railway company as personal property. For the
defendant it is insisted that that money, although per-
sonal property, has impressed upon it the character of
land, and that no act was ever done by the person entitled
to the money to manifest an election to enjoy it as money,
and not as land. Upon this part of the case there is a
good deal of evidence tending to show that the right of
election was exercised. This part of the argument
asstunes that the land was converted into money which
retained the character of land, and must be considered
as land until some act of election was shown. The
evidence goes to show that the parties entitled to it
elected to take it as money, and not as land. But the
assumption that this money was impressed with the
character of land, and that it required some act, as an
act of election, to entitle those who claim It to enjoy it
as money, seems to me not warranted by an accurate view
of the nature of the transaction by which the converdon
into money took place. It was not by the intervention
of this Court, but by an agreement entered into out of
court with the railway company under the statutory
powers of the Act, that a bargain was made to sell the
458
IMS.
At^Wtl/tHi*
Judgmtnt.
(a) 1 Sm. k G. 32.
VOL. IV.
(») t Coll. 74, 6O4
H H
454
CASES IN CHANCERY.
land and convey it, and to take the money as purchase-
money instead of land. But for the 7th section of the
Act such a transaction could not have been effected, be-
cause the case is one in which Elizabeth Gostling, the
person in whose right those who now claim the money
are entitled, was at the date of the transaction under the
disability of coverture ; and the land in question, as to
her reversionary interest, was in the anomalous posi-
tion in which in this country real property is placed
during coverture where land is the property of the wife.
That, however, is of little importance, because the
question now to be decided is whether the transaction of
the sale to the railway company of this land, and the con-
version of it into money, was a transaction authorised by
the 7 th section. The preliminary words of the 7th section
of the Lands Claused Act are wide and general; and
the words relied upon in the argument for the invalidity
of the deed under this clause, '' married women seized
in their own right,'* do not appear to me, looking at the
construction of the whole of this section taken together,
to describe the nature of the interest of a married woman
which is in any way different from the interest which the
married woman in this case had in land. But suppose
the construction of the Act otherwise, and the transaction
invalid : in that case the land would be recoverable as
land by those who claim under her. She cannot be
entitled to the money if there has been no conver-
sion.
It is said, however,' by the defendant, who contends that
there has been no conversion, and claims the money as
land, that he does not seek to impugn the title of the
railway company ; but it is difficult to follow this aigu-
ment, because if he claims the money he must admit the
title of the railway company to the land, and must
thereby admit the conversion. If the transaction with
the railway company was valid, which all parties seem
CASES IN CHANCERT.
to admit, the defendant's title is gone, because there
must necessarily have been a conversion.
In no view of the case can the defendant claim the
money except as through the wife, who, as the evidence
shows, dealt with it as money. The plaintiffs, therefore,
have established their right to a decree, which must be
for payment of one-seventh of the fund to the plaintiffs,
with interest from the death of the tenant for life, and
costs. The costs of the assignees from the date of the
disclaimer must be paid by the plaintiffs.
455
iae8»
Judgment,
H H
456
CASES IN CHANCERY.
1863.
Nov. A.
Demurrer to
a biU aUegiDg
that the
defendants
had receiyed
monies on
behalf of the
plaintiff, of
which he conld
obtain no ac-
coont without
discovery-
Allowed with
costs.
Where the
relation
between a
principal and
agent partakes
of a fiduciary
character, this
Court has
Jurisdiction^
and will
direct an
account,
though the
receipts and
payments are
all on one
side.
Phillips T.
Phillips,
9 Hare, 471,
md Dinurid'
die y. Baily,
6 Ves. 136,
considered.
HEMINGS t;. PUGH.
X HIS was a demurrer.
The biU prayed for an account of all moneys received
by the defendant on behalf of the plaintiff.
That the defendant might make a fuU discovery of all
sums received by the defendant for or on account of the
plaintiff, and might produce and leave with the Clerk of
Secords and Writs all books, papers, accounts, and other
documents containing any entries of any sums charged
by the defendant to any persons as paid to the plaintiff,
and wholly or partially paid to the defendant by any such
persons, or otherwise received by the defendant for or on
account of the plaintiff; and that the defendant might
pay to the plaintiff what on taking such account might be
found due to the plaintiff from the defendant in respect
of the receipts by the defendant for or on account of the
plaintiff: the plaintiff being ready and willing to make
all just allowances.
The bill, as amended, alleged that the defendant had
received on the plaintiff's account numerous sums of
money, of which the amounts and particulars were unknown
to the plaintiff. The bill charged that it was the duty
of the defendant to have accounted for and paid such
sums received by him as aforesaid to the plaintiff; that
the ^defendant had neglected to pay such sums to the
plaintiff or to render any account for the same, though
the plaintiff had made numerous applications for an ac«
count and payment. The bill charged that the defendant,
being pressed to examine his books and documents on
the 9th November, 1862> did pay to the plaintiff the
CASES IN CHANCERY.
437
sum of 9/. Ss, on account of the sums which defendant
stated he had dUcovered that he had received on account
of the phdntiff. The bill charged that the defendant on
that occasion told the plaintiff that he would make fur-
ther search among his books and documents, but the
defendant had neglected to do so ; but sometimes alleged
he had not time, and at other times that he had put
the books and papers away, and he would not have put
them away if they had been required for any purpose,
and that therefore nothing would be found due to the
plaintiff.
The bill also alleged that the defendant, on the 8th
May, 1863, on being informed that \ the plaintiff had
filed this bill, paid to the plaintiff a further sum of
20/. 15s. 6d., which the defendant on that occasion stated
to the plaintiff he had on a further search (which the bill
alleged to be a partial search) ascertained to be due.
The bill alleged that the defendant had neglected to
make further searches, or he would have ascertained
that he had received other sums on account of the
plaintiff.
The bill charged that, if the defendant would produce
such books, papers, accounts, and other documents, and
discover the truth, it would appear that a considerable
amount had been received by the defendant on the plain-
tiff's account, which he had failed to pay to the plaintiff as
he ought to have done. The bill alleged that such sum
was unknown to the plaintiff, and could only be dis-
covered by the evidence of the defendant, by the pro-
duction of the accounts and papers.
Hbmxiios
V,
PUOH.
StatemmU
Mr. Matins and Mr. Martindale, for the demurrer,
contended that there was no ground for the interference
of a court of equity. The case made by the bill was
one of mere agency, and the plaintiff, if he had any
Argument,
458
1863.
HBMIK08
V,
PUOH.
Argumenti
CASES IN CHANCERY,
claim at all, had his remedy at law. In Foley v. HiU{a)y
it was held that an account between a banker and his
customer consisting only of a few items was not a fit
case for a bill in equity — there was no mutuality in the
account. [^Phillips v. Phillips (Jb) was also cited.]
Mr. Bacon and Mr. Horsey ^ for the bill, contended that
the plaintiff was entitled to an account. The bill averred,
and the allegation must be taken to be true, that the
account could not be taken without discovery to the
defendant ; and this brought the case within the principle
laid down in Mackenzie v. Johnston{c)y and which was
a well-settled rule of this Court.
l^Phillips V. Phillips and Smith v. Leveaux{d) were also
cited.]
Judgnunt,
The Vice-Chancellor :—
This demurrer must be allowed. The bill contains a
mere averment of the receipt of money by an agent, but
that has never been held enough to sustain a bilL There
is also a simple bald statement, that without the evi-
dence of the defendant and the production of the books
the plaintiff is. unable to obtain an account Why the
plaintiff cannot obtain that evidence in an action is not
stated.
In the nase of Smith v. Leveaux Vice-Chancellor Wood,
in noticing the cases of Dinwiddie v. Baily(e), and i%t7-
lips V. Phillips {f\ appears to have treated them as
authorities to show that this Court will not interfere
where the receipts and payments are all on one side.
But I doubt whether that be the law of this Court
There are many cases between principal and agent,
(a) 1 Phil. 399 ;
Ct. 28.
(h) 0 Hare, 471.
(c) 4 Madd. 373.
s. c. 2 Ho. L.
(d) 1 H. & M. 123.
($) 0 Yes. 136.
(/)0 Hare, 471.
CASES IN CHANCERY.
459
where the receipts and paymenta are wholly on one side,
in which, however, this Court has exercised its jurisdic-
tion. In the case of a steward or land agent, the receipts
and payments are almost necessarily on one side ; that is,
no mutual payments and receipts. Yet that is a
case in which this Court from the most ancient times
(and more recently during the times of Lord Rosslyn,
Lord Thurlow, and Lord Eldon) has exercised this
jurisdiction. That jurisdiction still remains, and where-
ever an agency partakes of a fiduciary character this
Court has jurisdiction, and will direct an account, al-
though the receipts and payments are all on one side,
and there are no mutual payments between the parties.
That rule has not been shaken by the decision in
Phillips v. Phillips^ though there are passages in the
judgment in that case which may seem at first to be
inconsistent with the principle to which I have adverted.
Here there is no allegation of any mutual dealings^
- or of anything fiduciary in the relation of the parties,
who on the bill are stated as mere principal and agent.
The demurrer must be allowed with costs.
1803.
JudgmcnU
460 GASES IN CHANCEBY
1868,
;v^^. 21. CRESSWELL v. DEWELL.
WhereahuB- X HIS was a bill filed by Thomas Estcourt Cresswell
to*?h/intew8t and Harriette Daniel against Charles Goddard Dewell,
of a fimd fop ^jiA it prayed that it might be declared that the estate of
life, with r .' o
remainder to Thomas Dewell^ deceased^ was liable to make good the
iife,^iiiduced share of the personal estate of Arthur Dewell, deceased,
t^^^^ . to which the said Philip Howe Daniel became entitled as
triutee to pay ^
him the one of the next of kin of Arthur Dewell, with interest
money, on the . -i i i #. * -i »% n
written con- from the death of Arthur DewelL
w5e tile ^ T^® plaintiff was the surviving trustee of the mar-
djSd*hk*M"^ riage settlement of Philip Howe Daniel, and Harriette,
tate, was held his wife, by which the two sums of 800Z. and 300/.
liable to make • i • i /•
good the respectively were assigned to trustees upon trusts for
pidd^^n^a bill *^® benefit of Philip Howe Daniel for his life, remainder
filed by the to Harriette Daniel for her life, with remainder for the
widow, and
the BUTiying benefit of the children of the said marriage ; and on
failure of such children who being sons should attain
twenty-one, or being daughters should attain that age
or marry under that age, upon trust as Philip H. Daniel
should by will appoint, and in default of appointment in
trust for the next of kin of the said Philip H. Daniel,
according to the Statute of Distributions.
The deed contained a covenant by Philip H. Daniel
to settle after-acquired property, as well personal as real
estate, exceeding the sum of 200/.
In 1847, Arthur Dewell, who was the uncle of Philip
H. Daniel, died intestate, and letters of administration
to the estate were, [in February, 1848, granted to
Thomas Dewell, his brother, who was father of the
defendant Charles G. Dewell.
Upon Arthur Dewell's death the share of Philip H.
Daniel, as one of the next of kin, amounting to
CASES IN CHANCERY.
461
696/. I9s. Sd. was pud to Philip H. Daniel by Thomas
Dewelly with full knowledge of the provisions of the
settlement.
Thomas Dewell died in 1853^ having by will devised
and bequeathed nearly all his real and personal estate to
the defendant Charles Goddard Dewell. A suit was
shortly afterwards instituted for the administration of
Thomas Dewell's estate^ in which his personal estate
was wholly administered, and all his real estate which
had not been sold for the purposes of the suit was con*
veyed to the defendant Charles G. Dewell.
In January, 1862, Philip H. Daniel died intestate
and in embarrassed circumstances. There were no chil-
dren of the marriage.
This bill was filed in December, 1862, the plaintiff
Cresswell, alleging that he had only then very recently
become aware of the death of Arthur Dewell, and of the
alleged payment of tho 696/. 195. 8<L
The defendant C. G. Dewell by his answer said, that
until the claim of the plaintiff was made in 1861 he had
never heard of it, and upon inquiring he had found that
liie payments in question were made to Philip H. Daniel
in the months of March and June, 1848, and that the
following memorandum had been signed : —
"Memorandum, this 28th June, 1848. Whereas,
Thomas Dewell, Esq., as administrator of Arthur Dewell^
deceased, at my request, and with my full sanction and
approbation, has paid over to the undersigned Philip
Howe Daniel, my portion as one of the next of kin of
the said Arthur Dewell, deceased, the one-tenth part or
share of certain moneys in which the said Arthur Dewell
was interested, notwithstanding I, the said Harriette '
Daniel, may have any claim to have the same, or any
portion thereof, settled to or for my benefit under the
terms and provisions of the settlement made and executed
on my marriage with my said husband. And I hereby
1803.
Gbbsswbll
V.
Dbwbll.
StatmnsnU
462
CASES IN CHANCERY.
1863.
CftBBSWBLL
V,
Drwbll.
Statement*
declare that the payment so made was with my full con-
sent^ and that I will wholly oppose and discountenance
any proceeding whatever being taken by the trustees of
my said settlement, or any party or parties, or any claim
being made on my behalf for the purpose of the same
being settled or otherwise, and that I will be no party
to such proceedings, either by myself or by any next
friend on my behalf, and that this assurance, with the
fiill assent of my said husband, is to be taken by the
said Thomas Dewell free from any application or annoy-
ance whatever.
"Philip Howe Daniel.
" Habbiette Daniel."
The answer objected that P. H. Daniel's personal
representative was a necessary party to the suit^ The
answer also prayed to have the benefit of the Statute of
Limitations.
Argununt. Mr. Malitu and Mr. Freeman^ for the plaintiff. — The
"^^ moment the facts of the case are understood, it appears
clearly that the memorandum executed by Mrs. Daniel
was a mere nullity, her interest being reversionary.
The memorandum was really the act of the husband.
In Purdew v. Jackson(a), the Master of the Bolls uses
this language (J), ** What equity is there to qualify her (the
wife's) legal right, or to deprive her of it ? The acts of
the husband can create no such equity, for the law has
said that his (the husband's) acts shall not affect the wife's
chose in action, unless he reduce it into possession. In
this view of the matter it seems to me that it would alter
a most important i)art of the law of England if it were
to put it in the husband's power, where he cannot reduce
the wife's choses in action into possession, to affect
directly the wife's legal title by survivorship."
(a) 1 Bum. 1.
(b) Ibid. 46.
Argument*
CASES IN CHAXCERY. 463
In IFhittle v. Henning{a), where a fund was limited i*63.
to a husband for life> remainder to the wife for lifej Cbebswell
remainder to the son absolutely^ the husband and son by dbw'bll.
deed surrendered and released their interests to the'wife^
in order to give her an absolute interest in the fund^
with a view to assign it to her son, but the Court refused
to sanction the transaction, on the ground that the effect
would be to defeat its own rules and practice in the protec->
tion of married women from marital control. In Hop'
kins V. Myall {li)y where the fund was settled on a married
woman for life, remainder as she should by writing
attested appoint, and in default remainder to her chil-
dren; and the trustees, on the joint application of hus-
band and wife by letter, but unattested, parted with
the fund, the Court held them liable.
In this case the act of the wife was clearly not autho-
rized by any power, and was not binding upon her,
having been done while under coverture. It was sub-
mitted therefore that the plaintiff was entitled.
\^Cocker V. Quail{c) was also cited.]
Then it was said that the real assets of Thomas Dewell
were not liable after the decree, but it was submitted
that the decree discharged the executors only. The
plaintiff, therefore, was not incapacitated by the decree
in the administration suit from instituting the suit. Any
creditor who has not come in under a former decree may
follow the assets in an independent suit: Gillespie v.
Alexander{d)y Greig v. SomerviUeie).
Again, the Statute of Limitations does not run against
a woman under the disability of coverture^ nor can a
married woman be charged in equity with laches or
acquiescence. By the 13th section of the 23 & 24 Yic^
c. '^8, the 40th section of the 3 & 4 Wm. 4, c* 27, is
extended to cases of claims to the estates of intestates,
(a) 2 Phill. 73. (d) 3 Buss. 130.
{b) 2 Russ. & M. 86. \e) 1 Huns, k M. 333.
(c) 1 Ru8S. k M. 535.
464
CASES IN CHANCERY.
1888.
Caesbwxll
Dbwbll.
Argument,
and 8uoh claim is brought within the I6th section of the
latter Act.
Mr. Greene and Mr. Hemming for the defendant. —
The plaintiff had the benefit of the money ; she signed
the memorandum, and concealed the transaction during
her husband's life. This conduct amounted to fraud,
which disentitled her in this Court to any relief: Savage
V. Forsier(a).
But, secondly, the plaintiff had made her election, and
could not now impugn the transaction. In Barrow y.
Barrow {b), it was held that a married woman might elect
so as to affect her interest in real property without deed
acknowledged under the 3 & 4 Wm. 4, c. 74 ; and where
she has elected the Court can order a conveyance ac-
cordingly, the ground of such order being that no mar-
ried woman shall avail herself of fraud. \^Ardoise v.
Bennet(p) was also cited on this point.]
But, thirdly, the liability of Thomas Dewell in respect
of the breach of trust committed by him was only a
simple contract debt ; his estate was not affected by any
trust in respect of the same ; and any proceedings against
him in respect of such debt ought to have been brought
within siz years. If the plaintiffs had been proceeding
as next of kin ag^nst the estate of Arthur Dewell, or
as creditors against the estate of Philip H. Daniel, they
might perhaps have had twenty years. But, having only
six, the trustee is clearly barred ; and the coverture of
the widow does not save the bill, inasmuch as she is not
the proper party to sue.
This, therefore, was a simple contract debt, and was
barred by lapse of time : Thome v. Kerr{d)y Fordham v.
fVallisie).
(a) 0 Mod. 85. See JBvroy
V. Nicholas, where an infant
party to a fraud was held bound.
Ibid. 38.
(b) 4 K. & J. 400.
(e) 2 Dick. 463.
(d) 2 K. & J. 54,
{e) 10 Hare, 217.
CASES IN CHANCERY.
465
The billj being in effect for the administration of real 1B68>
estate^ ought to have been filed on behalf of the other cabssvsll
creditors^ and must to be dismissed. Dbwbll.
Judgment*
The Vicb-Chancellor : —
Thomas Dewell was clearly guilty of a breach of trust
In regard to that share of the personal estate of Arthur
which was due to the trustees of the settlement of Mr.
and Mrs. Daniel. What he did^ having that share in his
hands, was to hand it over to Daniel, who ^as merely
the tenant for life ; and, in order to secure himself against
the consequences of that breach of trust which he well
knew he was committing, he caused the wife of Daniel,
who was the next tenant for life under the trusts, — not for
her separate use while under the disability of coverture,
to sign a document which recited this breach of trust, and
recited that he had handed over the money to the hus-
band. He induced her to approve of that transaction
which deprived her of her life-interest in remainder.
Moreover, he got her to give him an assurance that she
would never come against him, or proceed against him to
make him liable for this breach of trust.
All this happened in June, 1848. This lady, being
under the disability of coverture, a memorandum of this
kind set up against her claim, now that she has survived
her husband, is^ upon the settled principles of this Court,
of no validity whatever.
No doubt she might have confirmed it when the dis-
ability of coverture was at an end. But no such case
is shown. It is said she is barred by length of time;
but not until 1862, upon the death of her husband,
did she become entitled to apply to Dewell to pay
her her life-interest under the settlement as due to
herself. It appears, however, that Thomas Dewell, who
had conunitted the gross breach of trust, died in 1853,
and a suit was instituted for the purpose of administering
466
CASES IN CHANCERY.
1868.
CXBSSWELL
r.
Dkwbll.
Judgment,
his estate. To that suit the present defendant^ then an
infant, was also defendant, and he appears to be the
devisee of the real estate of Thomas Dewell. The whole
of the estate of Thomas Dewell is liable, to make good
this gross breach of trust, and it is also perfectly clear
that this ladj is not barred by lapse of time, the case
being one of an express trust. It is not pretended that
the trustee, the present co-plaintiff^ concurred in sanction-
ing that transaction. The evidence shows that he knew
nothing about it; that he did not know that Thomas
Dewell w&s dead, and never heard of these circumstances
till after the year 1862. It is out of the question to
say that this trustee is bound by it, because he was not
a party to the breach of trust. It is equally out of the
question to say that he is able to sue for this breach of
trust merely as a simple contract creditor. In such a case
the innocent trustee may properly come to the Court
conjointly with the cestui que trusty who was the person
substantially defrauded, and is the only person interested.
There must be a declaration that Mrs. Daniel, as
cestui que trusty is entitled for her life to the dividends
of that sum or amount which is stated in the memorandum.
The present defendant in 1859, when he came of age,
obtained, under the sanction of this Court, a conveyance
of the real estate, which is the only part of the estate of
Thomas Dewell now applicable to make good tliis breach
of trust On the principle expressed in Greig v. Somerville,
and Gillespie v. Alexander, the right to go against that
part of the estate which is subject to this debt seems per-
fectly clear; and there must be a declaration that the
widow is entitled to a life-interest in that sum, and that
it is a charge upon the real estate.
The decree was as follows : —
^^ Declare that the payment to Philip H. Daniel of the
sum of 696Z. 19^. 8rf. by Thomas Dewell was a breach of
CASES IN CIIANGEHY.
467
trust, in respect of which the plaintiff Harriette Daniel
is entitled to be indemnified out of his estate ; and that
as tenant for life under the settlement she is entitled to
have what was due to her in respect of her life-estate in
the said sum so paid and secured out of the real estate of
the testator, which, by the indenture of July 25th, 1859,
was conveyed to the defendant. Let an account be taken
of what was due to the plaintiff Harriette Daniel in
respect of her life-estate in the said sum under the above
declaration, and let the chief clerk inquire and certify
what sum ought to be invested in the Three per Cents.
to secure to her payment of the dividends to which she is
entitled in respect of her life-estate in the said sum. Tax
plaintiff's costs, and let tliem be paid by the defendant
Charles G. Dewell within fourteen days after the date of
the certificate of the taxing master, or in default let the
amount be paid or raised out of the real estate, with the
amount certified to be due to the plaintiff Harriette
Daniel as above ; such last-mentioned amount to be in-
vested ; and with liberty to apply/'
1S6S.
CRS88WBLL
V.
Dbwbll.
468
CASES IN CHANCEUT.
1808.
iVop. 12.
An holr-at*
law cannot
maintain a
bill in the
Court of
Chancery to
set aside, on
the gpronnd of
fraud, a wUl
devising real
estates.
JONES t;. GREGORY.
X HIS was a demurrer to a bill filed by Thomas Jones,
of Ross, heir-at-law of William Jones (the testator),
against Jane Gregory and Thomas P. Little, who alone
of the executors and executrixes named proved the will
impeached by this bill.
The bill alleged that in the year 1840 William Jones
was attacked by paralysis, and that in 1842, he was
visited with a second and more violent stroke, which
deprived him of the use of the left side of his body, and
also of his speech, and very much weakened his mental
faculties ; that he died without issue on the 10th March,
1851, having continued from the time of his aforesaid
illness until his death perfectly imbecile ; that whilst he
was so afflicted he resided at his house in the High
Street, Stroud, up to his death, attended by his servants
Elizabeth Taylor (deceased) and her sister and the de-
fendant Jane Gregory, who were his sole and constant
attendants ; that these persons acquired so great an influ-
ence and control over him that he was subject to and in
great bodily fear of them, and was obliged by them to
permit them to attend to and regulate his business and
affairs; and that during such time they used every
endeavour, by misrepresentation and otherwise, to pre-
judice him unfavourably against his relatives.
Further, the bill went on to allege that in September,
1849, Elizabeth Taylor and the defendant Jane Gregory,
expecting William Jones's death to be near, sent for Mr*
Little, a solicitor, and either instructed the solicitor or
unduly influenced or overawed the alleged testator Wil-
liam Jones in such a manner as to induce him to make
CASES IN CHANCERY.
469
divers signs and sonndsj whicli the fiolicitor believed to
be, or Elizabeth Taylor and the defendant Jane Gregory
interpreted to be, instructions to prepare a written paper
purporting to be the will of the said William Jones,
whereby, after directing the payment of his just debts,
he gave, among other legacies, to his housekeeper E.
Gregory, meaning E. Taylor, 7500/. ; to his housekeeper
Jane Gregory 5500/. He bequeathed all his furniture,
&c., to Elizabeth Gregory, and gave to his trustees his real
estate on trust for sale, and gave the residue of his per-
sonal estate equally between E. Dike, S. Dike^ Jane
and Elizabeth Gregory.
The bill alleged that on the 29th September, 1849,
Elizabeth Taylor and the defendant Jane Gregory caused
three persons to attend as witnesses at William Jones's
house, and in their presence guided his hand or otherwise
assisted him to make a mark or signature to the said
written paper purporting to be a will, and induced or
overawed him so to do, he being at the time in the
extremity of illness, and incapable of writing or speaking
intelligibly, and utterly ignorant of or unable to compre-
hend the contents of the paper.
That one of the executors and devisees named in the
will refused to act, and that the will was proved by the
others. The bill went on to allege that two houses be-
longing to the testator had been purchased by Elizabeth
and Jane Taylor, alias Gregory, and were vested in a
trustee for them ; that Elizabeth Taylor was since dead,
and bequeathed all her property to the defendant Jane
Gregory.
The bill charged that the said pretended will of Wil-
liam Jones was obtained from him by undue influence
and misrepresentation, and was made and executed by
him when he was not capable of exercising his judgment
in such matters, and when he was bed-ridden and per-
fectly imbecile, and otherwise in such state of body and
VOL. IT. I I
1868.
statement.
470
1863.
JOVBS
V,
Gbboobt.
statement.
CASES IN GHANGERT.
mind as aforesaid^ and that the same ought to be declared
void for the purpose of passing real estate.
The bill alleged that the defendants threatened and
intended, unless restrained, to sell the two houses, and
to receive and get in and dispose of the rents and profits
thereof; and prayed, first, that such part of the will as
related to the two houses. High Street, Stroud, might
be declared void and be cancelled, or, if necessary, an
issue might be had or directed to try whether the free-
hold estates of the said William Jones were by the said
pretended will devised or not, or that the plaintiff might
be at liberty to proceed by ejectment ; secondly, that the
defendants might, if necessary, be restrained from selling
the said houses, and from receiving the rents and profits
thereof; and for a receiver, and for consequential relief.
Argument. Mr. Bacon and Mr. Charles Hall, for the demurrer,
stated shortly the nature of the bill. His Honour then
called on the other side.
Mr. Harding for the bill. — That this Court had
formerly exercised the jurisdiction ascribed to it by this
bill is clear, and the present Chancellor, when Attorney-
General, in the -case of Boyse v. JRossborouffh, expressed
his opinion that the jurisdiction of this Court to set aside
a will on the ground of fraud still existed : Maundy v.
Maundy{a), Goss v. 3Vacy(i), Welby v. Thomagh{c\
Middleton v. Sherburne {d), Raworth v. Marriott {e). Hap-
wood V. Earl of Derby{f)y Mudd v, Suchemore{g)y Scaiffe
V. Scaiffe{h)y Boyse v. Rossborough^i).
(a) 1 Rep. in Chan. 66.
(b) 1 P. Wm«. 280-7.
(e) 1 Prec. in Chan. 129.
(d) 4 Y. & C. Ex, 868.
(«) 1M.&K.643.
(/) 1K.&J.255.
(g) 4 De G. & Sm. 13.
(h) 4 Rois. 309.
(t) 1 Kay, 71 ; 3 De G.
G.817^16Ho.L.C.2.
M. &
CASES IN CHANCERY.
471
[The following cases were also cited : Lord DonegaVs 18^
Case{a)f Pemberton v. Pembertoti{b), Kerrichx. Bramby{c\ Jonb0
Andrews \, Pouys^d)^ Bennet v. Vade(^e). Obbooet.
On the question of the receiver, several other cases ^^"JZl ^
were cited.]
The Vice-Chancelloe : —
The authorities cited for the plaintiff show that this
Court has no inherent jurisdiction to entertain a bill at
the suit of an heir-at-law for the mere purpose of setting
aside a will obtained by fraud.
It has been argued that more than a hundred years
ago such a jurisdiction was, by judges of great authority,
said to exist. It is proposed that I should treat this
jurisdiction as having been latent, and should now set it
up as against the authorities cited. I have no power to
do that. It would be in vain for me, even if I desired
it, to attempt to set up such a jurisdiction against the
decisions of judges of the highest authority. I was
struck with the fact that it is only recently, by a decision
of one of the Vice-Chancellors, and by a decision of the
Court of Appeal, that this Court has, at the suit of a
mere legal devisee, entertained jurisdiction simply to
establish a will. That decision was questioned at the
time by some lawyers of experience and authority. I was
not one of those who felt dissatisfied. It seems to me a
Judgmmi,
(a) 2 Yes. sen. 408.
(b) 13 Ves. 290.
(c) 7Bro.P.C.437. In Middle-
ton T. Sherbumej 4 Coll. Ex. 378,
Lord Abinger says, " Kerrich v.
Bransby is treated as an autho-
rity that a will cannot be set
aside in equity fur fraud ; this is
an imperfect statement. * *
Andrews v. PowySy 2 Bro. P. C.
ed. Toml. 50^, is usually cited to
show that a Court of Equity will
hold no jurisdiction to set aside a
will of personalty ; yet it may be
cited to show the very reverse,"
p. 380. In Boy sey.Bosslwroughf
1 Kay, 83, V. C, Wood treats
Kerrich v. Bransby as having
finally put an end to the jurisdic-
tion of the Court of Chancery to
set aside wills on the ground of
fraud.
{d) 2 Bro. P. C. 504.
(e) 2 Atk. 324.
I I 2
472
CASES ly CHANCERY.
i8cn.
Jones
r.
Grboort.
Judgment,
useful jurisdiction ; and if I were at liberty to make the
law, and to disregard the decision of judges who have sat
in this Court during the last hundred years, I might be
disposed to think that it would be very beneficial to the
public, and a proper thing, that this Court, which enter-
tains jurisdiction to adjudicate upon questions of fraud
as to other instruments, should also assume a jurisdiction
to decide questions of fraud as to wills, whether of real
or personal estate* But, there being no authority for
such doctrine, I cannot act upon it. As to that part of
the prayer of the bill which prays for a receiver and an
injunction, it is not supported by any allegation as to
the necessity of preserving the property pending litigation.
There is no allegation in the bill which would justify the
Court in entertaining such a case as it attempts to set
up. Therefore, I am bound to allow this demurrer.
Leave to amend refused.
CASES IN CHANCERY, 473
. 1804.
BABGENT v. THOMSON. ^'ov.9.
IhIS bill was filed by Mrs. Bargent. and it prayed wiierealesnor
, , /. , / . . ^ brougfht eject-
that the defendants, who were tenants in common in fee ment for
simple of certain messuages and premises situate in High covenant to
Street, Eton, might be restrained from prosecuting the [?P*'' within
action or actions commenced by them, and from com- after notice, it
mencing or prosecuting any other action or proceedings oufo/twenty-
to recover possession of the said demised premises or any [^enty"ad
part thereof, by reason or on account of a forfeiture by ^®®" v^o-
^ f ... . ceeded with,
the non-compliance by the plaintiff with the therein-men- ond fourteen
tioned notice of the 16th September, 1862. that^he works
The bill stated that Richard Bargent, the late husband of t^y^eU^"
the plaintiff, became the lessee of the premises in question ^7 weather,
^ n . 1 . V . , ^ and that no
for a term of twenty-eight years, under an indenture of further remon-
lease dated the 22nd October, 1846. brmiSlfby
The lease contained a covenant on the part of the said ^J® ijwora—
■^ the Court
B. Bargent, his executors, administrators, and assigns, restrained the
that he would from time to time, and at all times as often directed an
as occasion should require, well and sufficiently repair, ^"i?eth?r the
&C.5 the premises by the said indenture demised ; and also covenants
* . had been
that it should be lawful for the said lessors, at all reason- performed.
able times, to enter into and upon the said premises to
view and see the condition of the same, and of all defects
and want of reparation then and there found to give or
leave notice in writing for the said K. Bargent, his exe-
cutors, administrators, and assigns, to repair, amend, and
make good the same within the space of three calendar
months then next ensuing, within which time the said
K. Bargent, his executors, administrators, or assigns,
should and would repair, amend, new-make, paint, and
make good the same. And it was further agreed that.
474
CASES IN CHANCERY.
1864.
BxnoBifT
V.
THoicaoNf
StatemenU
" if the said K. Bargent, his executors or administrators,
or his or their assigns, should not in all things well and
truly observe, perform, fulfil, and keep all and singular
the covenants and agreements therein contained, on his
and their part to be observed and performed, &c., it
should be lawful for the said lessors, &c., to re-enter, &c."
The bill alleged that R. Bargent entered and expended
a considerable sum upon the premises. He died in 1853,
and the present plaintiff became his sole personal repre-
sentative.
Mrs. Bargent let the premises to the persons now in
possession. The bill alleged that on the 16th September,
1862, she received a notice in writing requiring her to
perform certain repairs to the said premises, according to
a schedule or specification of dilapidations annexed to the
notice, made by the defendant's surveyor on the 8th Sep-
tember, 1862. The bill alleged that the schedule con-
tained twenty-two items, many of which were expressed
in very vague and comprehensive terms, and comprised
works which the plaintiff was not, by the covenants in
the lease, bound to do.
The bill alleged that immediately on receiving the notice
from the defendants the plaintiff employed a builder to
put the whole of the premises in a state of thorough re-
pair, so far as related to the carpenter's work necessary
to be done ; and that the works were commenced and
completed before the 16th December. That at the same
time the plaintiff employed a bricklayer and plasterer to
do all the necessary bricklayer's and plasterer's work, but
owing to unfavourable weather a portion of the work re-
mained incomplete. The bill alleged that the whole of
the repairs were completed by the end of the second week
in January, 1863,
The bill alleged that on the 18th December the defen-
dant E. T. Thomson called upon Mrs. Bargent, and saw
that some works were in progress. His demeanour was
CASES IN CHANCERY.
475
Statement.
very friendly^ and he said, " I am not come on business i^w.
this time."
On the 20th December, 1862, the plaintiff, to her great
surprise, received a letter from the defendant's solicitor in-
forming her that he was instructed to point out to her that
'^ by her omission to repair according to the notice her
lease had become forfeited, and that it had therefore been
deemed advisable to obtain possession of the premises
comprised in it" The letter proceeded to add that *' it
was fair to infer from the steadfast determination she had
shown to disregard the notice that she intended to forfeit
the lease, and he therefore presumed that she was ready
to deliver up possession at once." In case of non-com-
pliance he threatened her with legal proceedings.
The plaintiff placed the matter in the hands of her
solicitor, who, on the 22nd December, 1862, wrote to the
defendant's solicitor, stating that the plaintiff, after re-
ceiving the notice, had proceeded with the repairs, and
that they were then substantially completed; but that
the weather had occasioned unavoidable delay ; that the
premises had been repaired according to the covenant, and
that there was no reasonable ground of complaint.
On the 30th December an action of ejectment was
commenced against the plaintiff and the parties in posses-
sion.
The breach alleged was the not completing the repairs
required by the notice on or before the 16th December.
The bill alleged that between the 16 th September,
when the notice was given, and the 30th December, on
which day the writ was issued, no person ever visited or
inspected the premises on behalf of the defendants for the
purpose of examining and reporting on their state and
condition.
On the 8th January the plaintiff's son tendered on her
behalf a quarter's rent to one of the defendants, but he
objected to accept it, and in course of conversation re-
statement.
Argument,
47g CASES IN CHANCERY.
1864. specting the action said, " What we are going to try is
the time in which you ought to liave done the repairs."
And further added, " We say you did not repair within
the three months, and that the lease is forfeited, and we
are determined to try it out."
Mr. Craiff and Mr. Haviland Burke for tlie plaintiff. —
This is a case in which the covenant has been performed
within reasonable time, the delay having been solely
occasioned by the weather.
But here the lessor's conduct misled the plaintiif. It
would be a monstrous thing if a lessor were to be allowed
to take advantage of the rule of the Court not to relieve
against neglect to repair, to mislead his lessees, and then
have the benefit of a forfeiture committed under such
circumstances. [^Bamford v. Creasi/^a); 22 & 23 Vic. c.
35 sections 4 to 9, were referred to. See also Page v.
Bennet{b).']
Mr. Bacon and Mr. C. T. Simpson for the defendants.
— This wa5 the simplest case in the world. The bill
asked for relief against a forfeiture for non-repair, which
it was perfectly well settled this Court would not grant :
Hill V. Barclay (c), Gregory v. Wilson (d). It was not
denied that three months was ample time to complete the
repairs if the plaintiff had made the best use of it. That
she did not was her fault. The bill must be dismissed with
costs.
Judgment. The VICE-CHANCELLOR :-t-
The bill in this case is )iled upon an equity which has
always been recognised in this Court — that of a tenant
who has bound himself by covenants to repair, and who
can show to the Court equitable circumstances sufficient
(a) 3 Giff. 675.
(h) 2Giir. 117.
(c) 18V«i, 66.
(//) 9 Hare, ()83.
CASES IN CHANCERY.
477
to entitle him either to a relief from a strict performance
of the covenants, or to ensure him against a forfeiture of
the lease by reason of neglect to perform them. In this
case, taking it upon the statement of the defendants
themselves, it appears they gave notice upon the 1 6th
September to make certain repairs according to a speci-
fication within three months from the date of the notice.
Those three months expired on the I6th December. No
one was sent in the capacity of a surveyor — ^not even
the person whose specification bound the plaintiff — to
examine the premises and see whether the repairs had
been completed within the time mentioned in the notice.
But one of the defendants (the lessors), on the 18th
December, two days after the three months had expired,
went upon the premises, and (without informing the
plaintiiT that he had come to take notice of the state of
the works) found that out of twenty-two items two had
not been commenced and six not completely finished.
There was no objection taken by him as to the rest, and,
without complaining or sending the plaintiff* further
notice to complete the repairs, he went back, and twelve
days afler issued a writ in an action of ejectment, on
which he claimed to eject the plaintiff for the non-per-
formance of the covenant to repair.
The case made by the plaintiff is that she proceeded to
repair, but that the repairs were delayed by the state of
the weather. No notice was given to the plaintiff to
remind her that the repairs ought to be expedited, but
this action was commenced, and long affidavits have been
read containing conflicting evidence as to the state of the
weather. The Court cannot approve of the conduct of a
lessor who acts in this way. It would be an extremely
harsh thing, while out of twenty-two items, all except
two, relating to out-of-door work, have been proceeded
with, and all but eight entirely completed, to eject a
tenant and not to give the relief asked.
1SC4.
Barqbxt
V.
Thomson.
Judgment,
478
CASES IN CHANCERY.
1864.
Judgment,
The Court, no doubt, is bound to respect the obliga-
tions contained in a lease, and to hold an even hand
between landlord and tenant. Tenants are expected to
perform the covenants in their leases, and the Court will
not permit a tenant to evade the stipulations he has
entered into. But, if he honestly endeavours to perform
them, the Court will not allow the lessor to insist upon
an omission of a day, unless there be something in the
covenants that makes time of the essence of the contract.
I think the defendants in this case proceeded with undue
precipitation, and I by no means approve of their conduct.
The commencement of the action was a harsh and severe
proceeding ; and going on with it down to the notice of
trial, after an offer had been made, was still more so.
Besides, there were two actions, one against the lessee
herself, and the other against the persons in possession.
The mortgagees very properly kept themselves aloof from
this indiscreet litigation. The plaintiff filed this bill be-
cause of the notice of trial, and because there was no choice
left but either to come here or go before a jury. On the
very day upon which the bill was filed the plidntifT in
equity offered to forego her costs, both at law and in
equity, if her offer was accepted. I have heard no good
reason why that offer was rejected. There must be an
inquiry whether all the repairs have been executed
according to the covenant, if the defendants wish for it.
The injunction must be continued.
CASES IN CHANCERY. 479
1863.
DEPEEE V. BEDBOROUGH. Dw.3«.4.
0
N the 26th February, 1863, certain leasehold pro- At a sale
perty in the Ha3rmarket, London, was oflPered for sale bythe^Courtr
under the decree of the Court. ^« conditions
provided that
The 15th condition was as follows :— - incaseof non-
" That if any purchaser shall not pay his purchase- the pu°chaio-
money at the time above-mentioned, or at any other ™her defLuit
time which may be named in any order for that purpose, *i»«re should
, . _, , n 1 I. . ^« * resale,
and in all other respects perform these conditions, an and the
order may be made by the said judge at chambers for ^yf to be ^^
the resale of the premises purchased by such purchaser, ™*<^o 8^ ^y
and for payment by him of the deficiency, if any, in but containing
the price which maybe obtained upon such resale, and Mtofhe* °^
of all costs and expenses occasioned by such default." forfeiture of
Mr. Boucicault attended the sale and bid at the the deposit.
11 1111 1 . The purchaser
auction, and the property was knocked down to him paid the
at the sum of 9160/. He paid the required deposit .^^'i^d?*^
amounting to 916/. into court, and signed the contract. ^ca™«
° . bankrupt, and
By the chief clerk's certificate, dated 6th March, 1863, the assignees
he was found to be the purchaser, at the sum of 9160/. declined to
Before the time fixed for the completion of the contract S>urt ^wthe
Mr. Boucicault became bankrupt, and his assiffnees deposit
. _ * ® forfeited.
elected not to complete the contract. where the
Mr. Boucicault alleged that he bid at the auction, on SiSes^default
behalf of the New Theatre Company, Limited. "J «PJ?" ,
^ ^ stipulation is
The vendors, on the election of the assignees not to necessary to
1 . /• . , . entitle the
complete, served a notice of motion upon the assignees yendor to the
that the premises ifiight be resold, and that such might ^^JJ^'
be without prejudice to any right which the vendors
might have against the bankrupt or his assignees for
any deficiency which might arise, in case the amount
480 CASES IN CHANCERY.
1803. realised should be less than the sum bid by Mr. Bouct*
Dbpreb cault.
V.
BBDltOROUOH.
Mr. Bacon and Mr, Leiffh Pemberto?i, on behalf of the
vendor. The purchaser having made default, the deposit
is forfeited, without any express stipulation as to forfeiture.
It is forfeited from the nature of the thing, because,
having made default, he is incapacitated from suing at
law or equity to receive it. The amount was paid on
a contract, but how can a purchaser, alleging that he
has violated the contract, ask to have the amount repaid
to him which he can only allege to be his property,
in consequence of his own wrong. In Lethbridge v.
Kirkman (a), a purchaser, having paid the deposit,
refused to complete on the ground that the title was bad,
and brought an action to recover the purchase-money, the
estate having been sold at an advanced price; but the
Court, being of opinion that the title was good, gave
judgment for the defendant. That case was an express
autliority on the point now raised, and was approved of by
Lord St. Leonards(i). [^Cleave \.Moors{c), was also cited.]
Mr. Malins and Mr. Stcanston, for the assignees, — It is
(a) 25 L. J. N. S. Q. B. 80. deficiency that mi^ht ariiw on
(h) V, k P. 14th ed. p. 41. a second sale. The point argued
{c) 3 Jurist, N. S. 48, cited in appears to have been only whe-
Sugden, V. k P. 14tli ed. p. 41. ther the auctioneers, having the
In Lethhridgc v. Kirkman it does purch'\ser*s I. 0. U. for the de-
not appear from the report, whe- posit, could sue the purchaser
ther the condition provided for the upon it. The Court held they
resale and for the purchaser*:} could. The case of Casson v.
making good any deficiency that JhbertSj 31 Beav. 613, before the
might be occasioned on such se- Master of Bolls, was decided on
cond sale. The only point argued the ground that the contract for
seems to have been the question the sale of land, being verbal,
of title. In Cleave v. Afo&rSf the could not be enforced, and that
report does not show whether the deposit consequently was
there was any condition as to recoverable by the purchaser,
the purchaser making good the
Bbdborough.
Argument,
CASES IN CHANCERr. 481
not necessary to contend that, in the absence of any 1869.
condition providing for the default made by the pur- dbphrb
chaser^ the deposit would not be forfeited. The
cases cited were of that kind, but this case diifers
from any of those cited, inasmuch as here there is a
distinct remedy given to the vendor. In case of default
by the purchaser, there is to be a resale, and the de-
ficiency, if any, is to be made good by the purchaser.
What more can the vendors want ? Lord St. Leonards
on this subject, referring to the case of Palmer v. Tern-
ple{a)y speaks as follows(i): — ^^ Where there is no specific
provision, the question whether the deposit is forfeited
depends on the intent of the parties to be collected from
the instrument. Therefore, where 300/. was paid by way
of deposit and in part of the purchase-money, and the
agreement stipulated that if either party should refuse
to perform the agreement, he should pay to the other
1000/. as liquidated damages, it was held there should
be no other remedy. Consequently^ though the pur-
chaser had made default, and the vendor might have
sued for the penalty and recovered damages, yet
as he had sold the estate to another the purchaser was
allowed to recover the deposit." Lord St. Leonards
goes on to say, " the general question whether one con-
tracting for the purchase of landed property, who refuses
to complete his contract, may recover the deposit from
the vendor on his afterwards selling the property to
another, was not decided in that case ; but the impression
of the Court seems to have been that the deposit would
not be forfeited by a breach of the contract on the part
of the purchaser, unless there is a clause to that effect in
the cojitract. In this case there is no stipulation as to
forfeiture, and there is a clause which shows the inten-
tion was that there should be no forfeiture, and which
(a) 1 Per. k Dav. 379-382. (b) V. k P. 14tb cd. 40, 8. 79.
482
CASES IN CHANCERY.
1663.
DeI'RBE
V.
Bbddorouoh.
Argument,
Judgment.
gives the vendors an adequate remedy for the purchaser's
default; which in this case was caused hj events over
which he had no control. Under these circumstances it
was submitted the order must be refused.
Mr. T, Smith Osier appeared for a mortgagee.
The Vice-Chancellor: —
The question in this case has arisen in consequence of
a contract entered into by Mr. Boucicault, through whose
bankruptcy a new party to the suit has been introduced,
who has a right to abandon or to go on with the contract.
This shows that the 15th condition was not intended to
apply to the case of a bankruptcy, because, in the case
of a bankruptcy, the right of a resale, and the right of
the parties prosecuting the suit to have the property
resold, arise from other circumstances than those contem-
plated by this condition. Where a deposit is exacted by
the Court as part of the contract to be entered into by
the purchaser, the purpose for which it is exacted is one
for the benefit of the vendor — ^it is exacted as some
security for the performance of the contract ; but where,
after the payment of the deposit, and before the com-
pletion of the contract of sale and purchase, the incapacity
of bankruptcy succeeds, and the person who has paid
the deposit has no longer any right whatever, but his
right has been transferred to another person, who has
the right to go on or to abandon the contract, it is quite
clear that in such a case there has been a default on the
part of the purchaser. Then, how the person who is in
default can, upon that default, and in consequence of
that default, acquire any right to the money which was
parted with as a security that there should be no default,
it is difficult to conceive ; and if it be difficult to conceive
in any case that the person making the default can upon
so doing acquire a right to the money which was deposited
CASES IN CHANCERY. 483
as a security against a default^ upon what principle can ^^«
the assignees of that person^ who have a new rights make Dbpkbs
any claim whatever ; because they had a choice either to bbobokovok.
have the benefit of the purchase or to renounce it, and , - — ^
Judfftn0ttt»
as soon as they made their election and renounced the
purchase they abandoned the deposit ? I am unable to
follow the argument of the counsel for the assignees,
that upon the abandonment there arises a right to have
the security returned which was exacted to prevent the
contract being abandoned on the part of the purchaser ;
and no case can be found to sup}X)rt that view — at any
rate none has been cited to show that in a case like this
a person making default has been held to be entitled to
the security which he paid to prevent an abandonment
of his contract. It seems to me that it would be a
violation of principle to countenance any such claim as
that now put forward on the part of the assignees. The
passages cited from Lord St. Leonards' book have some
application ; but there is this peculiarity in this case —
that this was a sale by the Court, and the Court, having
exacted the payment of a deposit, has by its position of
depositee a very large power as to the rights of any
person who may in any shape make a claim upon it. I
do not wish to be understood as laying down any general
rule upon the subject ; all I decide is, that the assignees
have no right whatever to the deposit, and that by
abandoning the purchase they have abandoned the deposit
which relates to it ; and, therefore, I cannot countenance
the right of the assignees to this money in consequence
of the course which they have taken. On the other
hand, this notice of motion asks for a declaration of
absolute forfeiture of the deposit. Now, there has not
been a forfeiture by the bankrupt, but there has been a
forfeitui'e by the assignees, if by anybody, from the
course which they have elected to take. The proper
course to follow now will be, not to determine more than
Bbdborocoh.
Judgment,
484 CASES IN CHANCERY.
1803. that the assignees in bankruptcy have no right to the
Deprbr deposit; and even if upon a resale of the property it
should fetch ten times the amount which Mr. Boucicault
bid for it^ I do not see tliat any right can be set up by
the assignees to this deposit. On the other part of the
motion^ which asks that the vendors may be allowed to
prove in bankruptcy against the estate of the bankrupt,
I shall make no order, for the reason that the assignees
of the bankrupt had a right to elect whether they would
accept the contract or not, and they have exercised that
right by abandoning the contract. In fact, the Court of
Bankruptcy, in the exercise of its discretion, compelled
the assignees to make an election. The substance of my
decision is that these assignees liave no right to be paid
this deposit. To say there has been a forfeiture on
their part does not exactly state my meaning ; but, as
some expression must be used, perhaps the word forfei-
ture is as good as any other that can be found. The
order will be to the effect that, the assignees having
declined to accept the contract, the deposit has been
forfeited by them, and the property must be resold ; but
I will make no order as to the right of the plaintiff to be
indemnified as to any deficiency against the estate of the
bankrupt.
CASES IN CHANCERY. 485
1804.
TRAIL V. BAEING. Jan. 12 «• is.
JLHIS bill was filed by three of the directors of the A policy of
Keliance Mutual Life Assurance Society against the the life of T.,
trustees and the secretary of the Provident Clerks' J^a^^nw
Mutual Life Assurance Association, and it prayed that it company in-
duced another,
might be declared by the Court that a policy of assurance by way of re-
for 1000/., dated the 18th May, 1861, granted by the XronVe''
plaintiffs' company, was fraudulently obtained, and that J^auh'****^^^
it ought to be set aside and delivered up to be cancelled ; intended to
,,., . . 1. 11-11 retain part of
and that m the meantime an action which had been com- the risk,
menced by the defendants for the recovery of the sum of ey^^r^thev^'
1000/., expressed to be assured by the policy, might be subsequently
restrained. a further re-
in 1838 the International Life Assurance Society Seciared^id.
effected an assurance on the life of Mrs. Lydia Taylor ,/*"'^\'l
'' ^ Money, 6 H.
for the sum of 5000/. In 1860 they re-assured the life of L. c. iss,
with the Provident Clerks' for 3000/. In May, 1861,
that latter company proposed to insure the life of Mrs.
Taylor with the plaintiffs' office for the sum of 1000/.,
which proposal was accordingly accepted.
The bill alleged that, in order to carry into effect the
above arrangement, the secretary of the defendants' com-
pany, on the 10th May, 1861, called on the secretary of
the plaintiffs' company at their office, and proposed on
behalf of the defendants that the plaintiffs should take a
part of their risk in the said life by way of re-assurance,
alleging that the Victoria Office had agreed to undertake
the risk to the extent of 1000/., and that the defendants
would themselves retain 1000/. He then proposed that
the plaintiffs' society should undertake, by way of re-
assurance, the risk of the remaining 1000/., and stated
that Lydia Taylor was alleged to be in the sixty-second
year of her age ; that she could not be re-assured, but
that from the information the defendants had obtained the
VOL. IV. K K
considered.
486 CASES IN CHANCERY.
J5^ directors were satisfied that Lydia Taylor was a first-class
Trail life^ and that they had accepted the proposal and granted
Barznq. the assurance for 3000/. upon that footing. The bill
Statnient ^^^8^^ that this verbal proposal of the defendants'
secretary was entertained and accepted by the plaintiffs'
secretary on their behalf (as alleged) upon the distinct
understanding, expressed by the former^ that the directors
of his association had the fullest confidence in the good-
ness of the life, and that they would retain 1000/. as their
proportion of the risk of the 3000/. Fully relying on the
representations made by the defendants' secretary^ the
proposal was accepted, as the bill alleged, as a partnership
risk by the society, without the usual investigation or
inquiry into the age^ health, or habits of Mrs. Taylor.
On the 18th May, 1861, the defendants' office paid to
the society the sum of 79/. 13«. 4d. for the first year's
premium on the re-assurance. In January, 1862, having,
as the plaintiffs had since ascertained, been seriously ill,
Lydia Taylor died suddenly, but the pUintifis were not
informed of her death by the defendants until the 21st
May, 1862, by a letter from them. After her death the
bill alleged that the plaintiffs discovered that the defen-
dants, instead of retaining a risk of 1000/. on her life,
which they had represented they would retain, had assured,
by way of re-assurance, with the Victoria Office the sum
of 2000/* instead of 1000/., contrary to their representation
to the plaintiffs ; and that they had thus, by re-assurance,
got rid of the whole of their liability in respect of the
policy granted by them to the International Office.
After the receipt of the letter of the 21st May^ 1862,
announcing the death of Mrs. Taylor, further corre-
spondence was carried on between the secretaries of both
offices^ which resulted in the refusal of the plaintiffs to
pay the sum of 1000/. assured with them by the defen-
dants, and consequently in October^ 1862, an action was
commenced against them by the defendants to recover
the amount of the policy of insurance*
CASES IN CHANCERY.
487
The billj afterwards amended^ was filed on the 2l8t
November, 1862, and a notice of motion for an injunction
was given, but it was arranged to stand over to the hear-
ing of the cause.
The evidence on the part of the plaintiffs proved that
it was the custom and understanding upon such re-assu-
rances as the present (in the absence of a special stipula-
tion to the contrary) that the office effecting the re-assu-
rance should itself retain a substantial portion of the risk
covered by the original assurance, and for the office by
which the re-assurance is granted to dispense with the
usual medical examination on their own behalf, of the
person whose life is assured.
It was also proved that the directors of the Victoria
Office had paid the 20007. assured by them.
It appeared from the answer of the secretary of the
defendants' company that he told the plaintiffs' secretary
that the Victoria Office had offered to take 1000/. or
more of such 3000/., but that it was the intention of the
Provident Clerks' Office to give the Victoria Office 1000/.
only of such 3000/., and to keep 1000/. This statement
was strictly true in all respects, and the intention of the
Provident Clerks' Office was then precisely such as he
represented it to be. He then went on to state that he
believed Mrs. Taylor was sixty-two years of age, that a
fresh medical examination of her condition could not be
had, and that his directors were satisfied that she was a
first-class life*
This discussion took place on the 10th May, 1861, and
the same day, in an acceptance which was made upon that
representation in writing, the plaintiffs' secretary said : —
" This office will join you in the risk upon the life of
Mrs. Lydia Taylor to the extent of 1000/."
It appeared that before the transaction between the
plaintiffs and the defendants was completed the defen-
dants had got rid of the risk.
K K 2
Statmnenf.
488
1864.
Statement,
CASES IN cha:«ceuy.
As to the practice of assurance companies Mr. Jellicoe,
an actuary of great experience, gave the following testi-
monies : —
** Upon such re-assurances it is the custom and under-
standing, in the absence of a special stipulation to the
contrary, that the office effecting the re-assurance shall
itself retain a substantial portion of the risk covered by
the original re-assurance, and for the office by which the
re*assurance is granted to dispense with the usual medical
examination on their behalf of the person whose life is
assured, and to rely on the retention by such office of
their fair portion of the risk as a guarantee of their good
faith in effecting the re-assurance merely as a diminution
of their risk on the particular life, and not for the purpose
of getting rid of their liability 'on a life in which they
have not confidence.'*
It appeared from the evidence of the medical attendant
of Mrs. Taylor that at about the time of the policy being
effected in the plaintiffs' office Mrs. Taylor was not
in good health. Shortly after the death of Mrs. Taylor
the plaintiffs filed this bill asking that the policy for
1000/. might be declared void and be delivered to be
cancelled.
Argument. Mr. Bacon and Mr. Dauney for the plaintiffs.
There is a clear case of misrepresentation of a nifiterial
circumstance on which the plaintiffs relied when they
accepted the policy. It was not necessary in order to
vitiate the policy that the circumstance misrepresented
should be material ; the question was whether it was true
or false — not whether it was material or not . Anderson v.
Fitzgerald (a). In this case the representation that the
defendants intended to share a part of the risk was of
vital importance, because it was tlie only security the
plaintiff had that the life was insurable.
(fl) 4 ir. of L. C. 484.
CASES IN CHANCERY.
489
[The Vice-Chancellob — ^I think the burden lies on IBO*.
those who support the transaction.] Trail
V.
Barikg.
'Mr. Malins and Mr. Karslake for the defendants. —
There is a distinction between a statement of fact and a
statement of intention. No doubt, a fact must be stated
truly, whether material or not, and the case of Anderson
y. Fitzgerald carried that doctrine a long way. But an
erroneous statement of an intention, even supposing the
statement in the case erroneous, which it was not at the
time it was made, stands on a different footing. In
Jar den v. Money {a) it was held, that to raise an equity of
this sort there must be a misrepresentation of existing
facts, and not of mere intention. In Piggott v. Stratto7i{b),
the doctrine laid down in Money v. Jorden was con-
sidered and explained by Lord Campbell, and accepted
as law. \^Loffu8 v. Mata{c), Montefiori v. Monte/iori{d),
were also cited (e).]
Secondly, the case made by the bill is one of fraud,
and, having failed, the bill must be dismissed with costs :
mide v. Gibson{f).
Argument,
(a) oH.ofL. C. 185.
(ft) 1 De G. P. & J. 33, 51.
(e) 3 Giff. 592.
(d) 1 Sir \V. BI. 303.
(#) In Lqff'us v. 3faWf 3
Giif. p. 604, the Vice-Ch&n-
cellor, in reference to the case of
Money v. Jorden^ eoys, " Although
the decision in thbt case is no
doubt binding, it cannot be con-
sidered &8 a reversal of the de-
cision of the House of Lords in
Hamersley v. De Bicl^ and the
proposition attributed to Lord
Cranworth in the printed report,
that a statement or representation
of what a person intends or does
not intend is not sufficient, seems
irreconcileable with the decision
of the House of Lords in Ha-
mcrshy v. Dc Biel, 12 CI. k Fin.
45, and witli the law as laid down
by all the judges of the highest
authority, it is remarkable that
the case of ITamcrslcy v. DcBiel
was not referred to any of the
law lords in the case of Jorden v.
Moneyr
On the question of misrepresen-
tation see Rawlins v. Wichluim,
1 Giff. 355 ; s. c. 3 De G. & J. 304.
(/) iH.ofL. C.605,
490
CASES IN CHANCERY.
1864.
Trail
V.
Baring.
Judgment,
The Vice-chancellor : —
From the evidence of the defendants it appears that
the secretary of the defendants' company represented
that it was the intention of the defendants' company to
retain a part of the risk. Mr. Jellicoe^ an actuary of
great experience, states that upon effecting a policy of
re-assurance it is the usual custom for the office effecting
such re-assurance to retain a part of the risk. This is
precisely what the defendants' company represented they
intended to do. The importance of such representation
is beyond all question. The offer and the acceptance
upon that representation took place upon the 10th May;
but the policy was not then made, the contract was not
completed, nor was any premium paid by the defendants'
association until eight days after the representations
were made and the offer accepted. But in the mean-
time (viz. upon the 15th May) the directors of the defen-
dants' association niade up their minds not to retain
any portion of the risk, and not to have a contract for
joining in that risk, but to transfer the risk to somebody
else. That they made up their minds to do, and did, and
it was upon the 15th May, before the policy was signed,
that that change of intention took place. It was not
merely a change of intention, but the transfer was then
actually effectuated. The defendants retained no liability
whatever. There was, therefore, a representation made
which was material as an inducement to the plaintiffs'
society to enter into the contract : at the time when the
contract was perfected that was no longer a true repre-
sentation. The change of intention which made that re-
presentation no longer true was either accidental or de-
signed, and, no matter for what purpose, it was concealed
from the plaintiffs, who had accepted the offer and exe-
cuted the policy, and in pursuance of such acceptance
were about to join in the risk. The plaintiffs, however,
by the policy effected, were joining in no risk whatever
CASES IN CHANCERY.
491
with the defendants' association. My opinion is, that
upon every principle of the law of contract their policy
is yitiated by the conduct of the defendants' secretary,
however honest it may have been, whether from oversight
or for whatever reason. There must be a decree that
the policy be delivered up to be cancelled, and that the
defendants must pay the costs of the suit, including the
costs incurred upon the notice of motion for an injunc-
tion.
1864.
Trail
V.
BARiita.
Judgmmt.
492
CASES IN CHANCERY.
1864.
Jan, 15.
Bill by an ex-
l)ectant heir
to set aside a
a post-nuptial
settlement of
real estate in
expectancy, to
trustees for his
wife for life,
remainder to
pay annually
5002. to the
children,
remainder
to herself for
life, made
while he was
indebted, and
on the sug:-
gestion of his
wife's mother
—Dismissed
without costs.
The principle
on which this
Court acts in
discouraging
mortgages,
sales, and
dealings with
expectant
lieirs of rever-
sionary inter-
ests, lias no
application to
a settlement
by an heir in
favour of his
wife and
children.
SHAFTO V. ADAMS.
IHIS bill was filed by W. H. Shafto, and it prayed,
that a voluntary post-nuptial settlement of certain real
estate to which the plaintiff under the will of his uncle
was entitled, expectant upon the decease of his father
and uncle, and which was executed by the plaintiff under
the circumstances stated in the bill, might be set aside.
The bill stated that, shortly before the date and execu-
tion of the said settlement, the plaintiff, in consequence
of differences which existed between himself and his
wife, and his wife's mother Mrs. Eleanor Lee, left his
residence, and for a short time took up his abode at an
hotel in Plymouth, where he expected to be joined by
his wife. His said wife, acting, as was alleged by the
bill, not in accordance with her own feelings, but under
the influence of her mother, refused to communicate
with the plaintiff; that Mrs. Lee insisted that, previ-
ously to any communication taking place between the
plaintiff and his wife, he should execute a settlement
of his interest in real estate under his uncle's will. The
bill alleged that subsequently Mrs. Lee's solicitor, ac-
companied by a Major Studdy, a friend of hers, called
upon the plaintiff and represented that no reconciliation
could take place between him and his wife unless the pro-
posed settlement was made. The solicitor, as the plaintiff
alleged, further stated that if the plaintiff attempted to
sell his said reversionary estate he would not be able to
obtain more than 100/. or 200Z. for it, and promised that
Mrs. Lee would, if the plaintiff made the proposed set-
tlement, give him 60Z. in cash, and settle 1000/. on the
plaintiff's wife.
The bill alleged that in consequence of these represen-
CASES IN CHANCERY.
493
tations the plaintiiF agreed to execute the settlementj and
was taken by Major Stiiddy on the 27th July, 1858, to
the solicitor's private residence, who produced a deed
ready engrossed, which he read over to the plaintiff, but
without comment of any sort, and the plaintiff subse*
quently signed the same in the presence of the solicitor
and Major Studdy. No other person was present at the
execution of the said settlement. The solicitor retained
possession of the deed. The bill alleged that prior to and
at the date of the execution of the said deed the plaintiff
was in pecuniary distress. No copy or draft of the set-
tlement was previously perused by or on behalf of the
plaintiff. Neither the plaintiff's uncle, the tenant for
life, nor the plaintiff's father was consulted by the
plaintiff with reference to the settlement, and the
plaintiff was without any professional or other advice or
assistance. The costs of the solicitor who prepared the
settlement were paid by Mrs. Lee.
The bill alleged that, since the plaintiff's marriage and
before the execution of his said settlement, his wife's
mother, Mrs. Lee, had made some payments on his ac-
count, not exceeding the sum of 1000/., which it had been
arranged should be deducted out of the money to which
his wife would be entitled on her mother's death. That
after the date of the settlement Mrs. Lee under her
covenant had paid, for the separate use ol the plaintiff's
wife, interest on the sum of 1000/., but that he had never
received from Mrs. Lee's solicitor, or any other person,
the sum of 60/. The plaintiff further alleged that at the
date of the settlement the annual rent of the lands com-
prised in the settlement, in which the plaintiff was en-
titled for life in expectancy, subject to a charge of 3089/.
17^. 5d. and certain annuities, exceeded the sum of
38,000/., and that the value of his life interest therein was
16,000/. at least, but of which fact he was at that time
in complete ignorance.
1864.
Shafto
V.
Adams.
Staietneni*
494
CASES IN CHANCWY.
1864.
Statement,
The indenture in question wa« dated the 27th July,
1858, and made between the plaintiff of the first part,
Mrs. Lee of the second part, and William Frederick
Beadon (since dead) and John Adams of the third part.
After reciting that an estate in fee simple had been de-
vised to the plaintiflTs uncle for his life, remainder to the
plaintiffs father for his life, remainder to the plaintiff for
his life, with remainder to his first and other sons and
their respective issue severally in succession in tail male
as therein mentioned; and reciting that Mrs. Lee had
since the plaintiiTs marriage made considerable payments
for his benefit; in consideration of such payments, and
of Mrs. Lee's covenant thereinafter contained, the plain-
tiff granted unto the said trustees, their executors, ad-
ministrators, and assigns, all that his interest in the said
property expectant upon the several deceases, or other
defermination of the estates of his uncle and father as
aforesaid. To hold the si^ne for a term of ninety-nine
years if the plaintiff should so long live, upon trust that
the said trustees should, as soon as the plaintiff should
become entitled to the receipt thereof, become and stand
possessed of the rents and annual profits of the heredita-
ments comprised in the said term during the joint lives
of the plaintiff and his wife, to pay the rents and profits
thereof to the wife for her separate use, with a restriction
on anticipation, and after her death during the life of the
plaintiff out of the said rents and profits to pay the
annual sum of 500/. for the maintenance and education of
the children of the plaintiff and his wife, in such shares
and manner as the said trustees should in their discretion
think proper, and that the trustees should pay the residue
of the said rents to the plaintiff and his assigns; then
followed trusts for the maintenance, education, and ad-
vancement of the children, with a provision that the non-
applied accumulations should be in trust for all the
children in equal shares, with an ultimate trust in favour
of the plaintiff.
CASES IN CHANCERY.
495
It was by the said indenture witnessed tliat^ in consi-
deration of the grant of the said hereditaments by the
plaintiff thereinbefore contained^ Mrs. Lee covenanted
with the trustees that she, her heirs, executors, and ad-
ministrators, would forthwith pay to them the sum of
1000/. ; and in case the said sum should not be paid
forthwith, to pay interest for the same at the rate
of 5L per cent, per annum. And it was also agreed
that the trustees should stand possessed of the said sum
of 1000/. ; upon trust to allow the same to remain due on
the covenant of Mrs. Lee, or compel payment thereof and
invest, the said sum when so paid in or upon the securities
thereinbefore mentioned, and pay and apply the annual
income of such investment for the benefit of the plaintiff's
wife, for her separate use for life, and without power of
anticipation ; and after her decease to apply the same and
the annual income arising therefrom upon the trusts
thereinbefore declared with respect to such part of the
said sum of 500/. as might be so accumulated as afore-
said ; but in case there should be no child to take the
same, then upon trust for Mrs. Lee, her executors, ad-
ministrators, and assigns.
The defendant was the surviving trustee of the settle-
ment in favour of the wife and children of the plaintiff.
The bill offered to repay to Mrs. Lee all payments made
by her under the covenant aforesaid for the benefit of the
plaintiff's wife.
1S64.
Statement
Mr. Bacon and Mr. F. T. White for the plaintiff.
This was a settlement by an expectant heir at a time
when he was greatly embarrassed, and under the influence
of his wife's mother. It was made when the plaintiff was
ignorant of the real value of the property, and was not
in the usual form which would have given the husband
the first life estate. In Cooke v. Lamotte (a), where an
Argument^
(a) 15Beav.2d4.
496
1804.
SlIAFTO
V,
AdA&(8,
Argument,
CASES IN CHANCERY.
aunt was induced by her nephew to give him a post obit
bond, the Court set it aside. [^Hoghton v. HogTUon (a).
Archer v. Hudson (i), and Jenner y. Jenner (c), were also
cited.]
Mr. Malins and Mr. (7. Hall^ for the wife and children^
were not called upon.
Mr. Karslake appeared for the trustee.
Judgment, The ViCE-ChANCELLOR : —
Independently of the question of purchase, this bill
cannot be sustained. There is no authority or intelligible
principle upon which this Court can interfere at the in-
stance of a husband to set aside a settlement made by
himself in favour of his wife and children. In this case
an attempt is made to set aside the settlement upon
the ground of the husband being an expectant heir.
His being an expectant heir Is no reason why he should
not make such a settlement as this. The principle upon
which this Court acts in discouraging mortgages, sales, and
dealings by expectant heirs of their reversionary interests
has no application to the case of an expectant heir who
has made a settlement upon his wife and children. The
bill must be dismissed, but without costs.
(a) 15 Beav. 278.
(V) 3 Giff. 232.
(c) 7 Beav. 651.
CASES IX CHANC£Rr. 497
1864.
COPPARD V. ALLEN. ^,,. 20 fr 21.
1 HE bill in this case was filed by Thomas Coppard, of On a bill by a
Henfield^ Sussex^ on behalf of himself and all other the against an
unsatisfied creditors of the defendant Richard Gates, a under a deed
brewer and farmer at Horsham, in Sussex, and prayed for the benefit
, , * -^ ofcrediton,
that the trusts of a deed of inspectorship executed by who had
him for the benefit of his creditors might be carried into Jcfo^th©
effect under the order of the Court. ?h2 dwd « to
The bill also prayed for an account against the defen- getunginthe
dant Alfred Allen, who was one of the inspectors under estate, the
the deed, and that he might be charged with what, but an awjou^nr^^
for his wilful neglect and default, he might have received, f^*^')**®
The bill alleged that the plaintiflT had made numerous wilful default,
applications to the defendant for an account of the state rests and
of the assets. The defendant's solicitor had, after re- for*^* co'Sf
peated applications, sent to the plaintiff a statement of ^^^^ ■•**'•
account ; but the defendant Allen positively refused to will treat in-
give any assistance in verifying such statement. rSwoniTble
The bill further alleged that the defendant Allen had bjj''^f^^®'
retained in his own hands a large sum, being part of the »™e time
proceeds of the estate, and that he claimed to be paid a them
considerable amount for his services, and to be allowed da^ence^^^^
sundry payments, for which he had no proper vouchers. ^u'^J'd*"^
The deed was dated the 31st August, 1851, and was prescribed and
made between Richard Gates of the first part ; Fielder
King, James Rhodes, and the defendant Allen of the
second part; and the several creditors of (rates who
might execute the same of the third part. It recited
that, at a meeting of Gates's creditors, it was represented
to them by him that it would be for their benefit if his
stock in trade and effects were got in and realised from
time to time, and not by a forced sale ; and it was there-
498
CASES IN CHANCERY.
1804.
COPPARD
v.
Allen.
Statemetit,
fore agreed that a year should be given to the said
R. Gates to collect, get in, and dispose of his estate
under the inspection of the three persons parties thereto
of the second part. It was thereby witnessed that the
parties thereto of the third part granted to Gates licence
to conduct and manage the affairs of his trade and busi-
ness as a brewer and farmer, and to collect, get in, and
dispose of his stock in trade, estate, and effects, under
the inspection of the three inspectors, until the 30th
August, 1852, if he (Gates) should so long live, and ob-
serve the covenants therein; and covenanted that the
parties thereto of the third part would not during the
time aforesaid sue the said B. Gates, nor attach his
estate.
Gates for his part covenanted with the three inspectors,
and with the creditors parties of the third part, when
required by the inspectors, to make out in writing a true
account of his debts, property, and effects, and of the
several incumbrances thereon, and to use his best endea-
vours to collect and get in the same for the benefit of his
creditors ; and from time to time, when any money should
have been received by him sufficient to pay 2s. 6d. in the
pound upon the debts, to pay and distribute the same
unto and amongst his creditors, and so from time to time
until all his debts should be paid ; and until such payment
to deposit the moneys received by him with the Branch
London and County Bank at Horsham, to an account to
be opened for the purposes of the said estate, or other-
wise dispose thereof as the three inspectors should from
time to time direct.
The deed further provided that if, by I'eason of any
unforeseen cause, any delay should take place in the final
settlement of the affairs of the said Richard Gates, so as
to prevent his creditors from receiving the full amount of
their debts at or before the expiration of a year, the in-
spectors might prolong or extend the time for the further
CASES IN CHANCERY.
499
space of another year. The deed contained also a cove-
nant by Gates with the parties of the third part, that if,
at any time during the said term or intended term, his
trades or businesses should, in the judgment of the in-
spectors, become embarrassed or less adequate to answer
the purposes thereby intended, he (Gates) would at the
request of the inspectors convey and assign to them all
the then unapplied residue of his estate and effects for
the use and benefit of the said creditors, as the inspectors
should require. It was further agreed that on any sale
the surplus moneys to arise therefrom should be paid to
the inspectors on trust to pay and divide the same among
the creditor*. Previously to the execution of the deed
a meeting of the creditors took place, at which it was
stated that the debts amounted to 35,000/., of which
5493/. was due to the plaintiff. The assets were repre-
sented to be worth 25,000/.
At the date of the execution of the indenture by
Gates, he was seised of real estate of considerable value,
some of which was mortgaged. His other property con-
sisted of stock in trade, book debts, furniture, &c.
The bill alleged that out of the moneys received by
the inspectors large sums were paid by them to the
mortgagees, but no dividend had ever been declared
among Gates's general creditors. The bill further alleged
that the inspectors had received sufficient property be-
longing to Gates to have paid a considerable dividend on
all his unsecured debts, but that such property had been
misapplied and wasted to a considerable extent; and
that, but for their wilful neglect and default, they might
have received considerable sums in respect of the out*
standing debts due to Gates, and of other portions of his
property, besides what they actually received, and that
the defendant Allen ought to account for the moneys
which might have been so received.
In 1854 James Khodes, one of the inspectors, left the
1S64.
CorPARo
V.
Statement*
500
1864«
Statement*
CASES IN CHANCERY.
country, and was still out of the jurisdiction of the Court.
In 1861 Fielder King, another of the inspectors, died,
and Allen had since acted as the sole inspector.
The defendant Allen, by his answer, averred that
William King, solicitor, of Godalming, a brother of
Fielder King, took upon himself the management of the
affairs of the inspectorship, and, except as after men-
tioned, conducted the whole of the business. A portion
only of the proceeds of the real and personal estate was
paid to him the defendant, and, by reason of the said
William King's refusal to deliver up the accounts to him,
he was unable to state specifically the particulars of the
estate. In the schedule he had set forth an account of
the moneys received by him, showing a balance of 141/.
15*. 8rf. only in his hands belonging to the general cre-
ditors. He claimed to retain certain sums in respect of
a judgment debt of 1100/. The report sent by William
King, in reply to the plaintiff's application, was prepared
and sent without defendant's instructions; and he was
unable to furnish a more complete account, owing to the
papers and accounts being solely in the hands of William
King, who had refused to deliver them up.
It appeared from the evidence of William King that he
had only acted in realizing the estate as solicitor for
Allen. He admitted that the schedule to the defendant
Allen's answer was, to the best of his belief, inaccurate
and defective. He had received tlie proceeds of the sale
of some furniture for which he bad not accounted, and
he permitted Gates to retain other furniture, for which
he was to pay 179/. 13*. 7(/., which he had not done.
An accountant, named Bolton, who was employed by
Mr. William King, alleged that the first account fur-
nished by Allen consisted of two items only on a slip of
paper, which he rendered. Upon being pressed for further
accounts, he sent in particulars of a claim for travelling
expenses amounting to about 100/. When a further
CASES IN CHAXCERY.
account was furnished the witness, in a letter to William
King, described it as bearing " evident marks of error,
confusion, and stupidity."
Mr. Afalins and Mr. Kay for the plaintiff contended
that this case was within all the authorities. The right
to an account could not be disputed. It was equally clear
that the defendant Allen was bound to make good all
those sums which had been lost through his neglect
The suit had been made necessary by his misconduct,
and it was submitted he must pay the costs.
ISpringett v. Da8htoood{a), Kemp v. Burn{b), were
cited.]
Mr. Bacon and Mr. Bowcliffe for the defendant
Allen. — This suit is defective for want of parties.
Both Rhodes and King acted, and, even assuming that
Rhodes, who was out of the jurisdiction, could not be
made a party, there was no reason assigned why the
personal representative of King was not made a de-
fendant.
But, secondly, this bill ought to be dismissed so far
as it seeks to make the defendant Allen personally liable :
he had no active duty to perform, and therefore he could
have neglected none. The scope of the deed was that
Gates should get in and realise the estate, and he cove-
nanted to do so, but it would have been impossible
to enforce that covenant. Then, where was the case of
wilful default? The defendant was perfectly willing to
account for all moneys received by him, and to vouch
all payments which he claimed, and if the plaintiff wanted
this relief he should have filed a different bill.
Mr. Brooksbank, for the defendant Gates, had offered
to pay into court the sum of 150/. in respect of the fur-
oOl
1804.
COPPARD
r.
Allbv.
Argument .
(a) 2 Giff. 521.
VOL. IV.
(b) 4 Giff. 348.
L L
502
CASES IN CHANCERV.
1864.
COFPARD
V.
ALLE5.
Judgment,
niture^ and asked that the bill might be dismissed against
him with costs.
The Vice-Chancelloe : —
It has been contended on behalf of Alfred Allen
that^ from the peculiar nature of the deed of inspection
of the 31st August^ 185 1, there were no' duties of
any active kind imposed upon him^ or that they were
such that he was justified in pursuing the course he had
taken.
The argument on his behalf has mainly been that
there were no duties at all upon which this Court could
fasten a trusty and that, inasmuch as there were no duties
to perform, there could be no decree for the performance
of them. If, however, there were duties to perform, and
there has been no performance, that amounts to a neglect
of duty, and upon the whole case it seems to me to be
one in which there has been gross neglect on his part.
The question is Important, because in many cases of this
kind, where the duties of trustees under deeds of inspec-
tion are involved, and when the trusts are for the benefit
of the creditors, it too often happens that there is not
that degree of diligence or that strict performance of the
duties of the' trusts which the interests of the creditors
require. The Court Is, I think, bound to treat persons
acting as Inspectors or as trustees with a reasonable
degree of Indulgence ; but at the same time it will require
of them a reasonable degree of diligence in the perform-
ance of their duties. There can be no doubt as to the
duties which were to be performed in this case. The
form of the deed left it merely in covenant that the
whole of the property should be conveyed to and vested
in trustees, in order th^t It might be sold and realised for
the benefit of the creditors. The deed contains only a
covenant to that effect, but the Court must hold that the
CASES IN CHANCERY.
503
trustees were liable for the nonperformance of that
covenant which it was their duty to enforce on the
part of the debtor.
It is said that the covenant was not with them, but with
the creditors, and if it were that is no excuse at all in a
case of this kind. But, in fact, the trustees had, under
this deed, power to require, if necessary, an assignment
of the whole of the property of the debtor ; but practically
no conveyance of the property was necessary, because
their dominion over it was never resisted by the debtor.
Here there can be no doubt that the inspectors had
duties to perform, and that the defendant had acted as
inspector. Through the intervention of a solicitor acting
for the inspectors, the property was in part received and
realised ; part of it was sold, and some of the outstanding
debts were got in. All that was done in the execution
of the powers conferred upon the trustees ; and nothing
seems to have been required for the actual and complete
performance of the trusts, or to enable the trustees to
get in the whole of the property of the debtor. Gates,
who interposed no obstacle whatsoever to the perform-
ance of the trusts. The question is, how has the pro-
perty been disposed of which was got in ? It is clearly
in evidence that it was got in with the knowledge and
under the inspection and control of the defendant Allen.
The bare fact that the balance, though it amounts to
only about 150/., has been, during a period of nine years
at least, in the hands of the defendant Allen, and undis-
posed of by him, is evidence of neglect on his part.
Another part of the evidence showing his neglect is, that
the price of the furniture, though a sum not very con-
siderable, yet of an amount sufficient to have made it
the duty of Allen to get it in and hold it for the benefit
of the creditors, has not been got in at all from the
debtor, but still remains in his hands. It has been well
L L 2
1964.
Judffmcnt,
504
CASES IN CHANCERY.
18G4.
WN ^/
COFPARD
V,
Allen.
Jttdgment,
settled that, in the case of a bill for an account against a
person in a fiduciary character, one act of neglect is
sufficient to make him liable to a decree for an account,
as for wilful neglect and default for what he might haye
received. But the neglect and misconduct of the de-
fendant appears from the evidence of Mr. Bolton, the
accountant and solicitor formerly employed by the inspec-
tors, which is wholly inconsistent with the answer of the
defendant Allen, of a gross description.
In this case this trustee is little entitled to the
indulgence of the Court for his conduct. He has
shown great neglect in the performance of his duties,
and yet he has preferred claims against the trust estate
to as great an amount as the utmost diligence on his
part would have entitled him to do. It is objected
that the defendant is only one of three trustees, and that
the plaintiff ought not to have an account, directed
against him without bringing the other two trustees,
Rhodes and King, or their representatives, before the
Court ; but Rhodes is out of the jurisdiction, and that is
a reason for not having him before the Court ; and King
is dead, and I can see no reason why his representative
should be made a party to the suit. It has been well
settled that a cestui que trust, seeking an account against
trustees for a breach of trust by one of the trustees
alone, will be justified in bringing that one before the
Court without the others. There is no diflBculty pre-
sented in this case by the absence of the other inspectors,
both of whom seem to have acted in the character of
trustees. The plaintiff prays for costs up to the decree,
and, looking at the defence of the defendant Allen, and
the attitude he has assumed, I think that the plaintiff is
entitled to the costs of the suit up to t}ie date of \h%
decree, and also that he is entitled to a decree for an
account as for wilful neglect and default for what the
defendant Allen might have received. As to Gates, he
CASES IN CHANCERY.
505
lias snbmitted to pay the 150L, which appears to be still
on his hands, into court, and the order will be that he
do pay the same within one month. In taking the
accounts against the defendant Allen there must be yearly
rests with interest at 5 per cent upon the balances.
Though it does not help the defendant's case that he was
not more diligent in getting in the money which has
remained in the hands of Gates, yet I can see nothing
in Gates's conduct that]]entitles the pliuntifF to a decree
against him for costs.
1864.
COPPARD
V,
Allen.
Judgment.
WILLIAMS V. HEADLAND.
William headland, the testator in the cause,
bequeathed to the defendants Francis John Headland and
Edward Headland, their executors, &c., all his personal
estate upon trust, as to one-third thereof, to convey, assign^
pay, and deliver the same to the separate use of the
plaintifiP Isabella Ann Williams ; and as to the remaining
two third parts, at their and his absolute discretion, to sell
such parts thereof as should not consist of money or
securities for money, mining, railway, or other shares or
description of property not bearing interest, dividends, or
annual produce, and to invest the same as therein men-
tioned, and stand possessed of the interest, dividends, and
annual produce thereof, upon trust to pay the same to
A. M. Headland for life, and after her decease to pay,
transfer, and assign, assure and convey the said two third
parts or shares of bis said personal estate, and the stocks,
Jan* 23.
In an admi-
niBtrationsuit,
the order of
the Court is
an indemnity
to the execu-
tors.
In an ad-
ministration
suit, executors
claimed to
retain part of
the residue as
an indemnity
against possi-
ble liability in
respect of
mining shares.
The Court
refused the
claim, but
required the
residuarylega-
tees to under-
take to ansirer
such UabiUty.
506
18G4.
Williams
V.
Headland.
State»ient.
CASES IN CHANCERY.
funds, and other securities upon which the same might be
then invested, unto E. M. Headland and C. Headland
absolutely.
Testator died on the 3rd April, 1860. At his death
he was possessed of shares in certain mines on which it
was contended certain liabilities might arise.
The shares had been sold for 2s. 6d. per share, but had
not been registered in the name of the purchaser ; and
the executors said that they were informed and believed
that the testator's estate might be made liable for future
calls.
Argument,
Mr. Malina and Mr. Melville, — This was a suit for the
administration of the testator^s estate, and any order for
payment made by the Court is an indemnity to the execu-
tors. In Waller v. Barrett (a) the Master of the Rolls
says, ""Where executors have fairly placed all the cir-
cumstances before the Court and act under its order they
will be indemniBed against all future liabilities " (6). In
Bennett v. Lytton(c) Vice- Chancellor Wood followed the
decision of the Master of the Rolls. His Honour said (cZ),
I rest my decision on the broader ground that executors
who act under the direction of the Court will be protected,
and that those who may afterwards dispute the propriety
of the application must proceed against the legatees.
What Vice-Chancellor Wood thought was the right ground
for the creditor to take was actually taken in Dames v.
Nicholson^ where the creditor sued the specific legatee.
Mr. Bacon and Mr. Toulmin^ for the executors. — The
usual practice of the Court was to allow executors to
retain a sufficient sum to indemnify them against risk.
That ip^as the invariable practice as to leases until the
passing of the 22 & 23 Vic. c. 35. This case was not
(a) 24Beav.413.
(h) Ibid. 416.
(c) 2J.&H.155; ibid. 158.
{d) 2DeG.&J.693.
CASES IN CHANCERY. -^ 507
provided for by the statutes ; all that the executors asked 1864.
was to have £200 retained as an indemnity to them. Williaus
The Vice-Chancellor : — bai^n d.
In the ease of Bennet v. Lytton^ which has been referred ^^idgmint,
to, Vice-Chancellor Wood appears to rest his order upon
the broadest ground.
I cannot imagine anything more dangerous than to
throw the least doubt upon the extent to which a
decree of this Court is an indemnity to executors. If
this Court orders a sum to be paid to an executor, or
orders an executor to pay a sum, or takes it out of his
hands, that order is, generally speaking, an indemnity to
the executor. But the Court is always careful of the case
of those who may have demands against the estate not at
present made, or not at present appearing ; and for this
reason, as Lord Cottenham long ago pointed out, the old
practice of the Court was that every legatee, before he
got payment of his legacy through a decree of the Court,
was obliged to enter into a recognisance to refund in case
demands should be made against the estate which did not
then appear. That practice gradually got into disuse,
but that course of the Court clearly shows that what the
Court had in view was, not merely the indemnity of the
executor, but care with reference to the rights of those
who might have demands against the estate not then
appearing, so as to preserve those demands against the
assets in the hands of those who were to receive them
from the Court. In the case of Waller v. Barrett the
Master of the Rolls had before him a demand for an
indemnity, in the shape of setting apart a specific fund £o
answer an apprehended breach of covenant in a lease. In
that case the chief clerk certified, upon a reference for
providing a proper indemnity, the case being one in which
an indemnity was necessary, that recognisances by the
legatees who were to receive the monejr out of court
Judgment.
508 CASES IN CHANCERY.
I8G4. would be a sufficient indemnity, and so the Master of the
Williams Rolls held. In that case he reviewed the whole of the
iiEADLAWD f^^tl^orities, and showed very clearly the principle upon
which the Court acts. I notice that case because it was
one in which there was no decree, for general administra-
tion— ^a case in which, therefore, the executors had not.been
indemnified by the order of the Court in the administration
of the estate. It follows, firom what he pointed out, that
when the Court too implicitly follows a precedent a great
deal of injustice is done, and more is done than is necessary
with reference to the rights of those who may be entitled
to demands against the estate, or than the proper indemnity
of the executors requires. The general rule is, that what
the Court orders to be done as to an estate is an indemnity
to the executors, as the Master of the Rolls stated in
the case of Waller v. Barrett. I do not mean that, where
an executor is ordered to pay a sum in a suit which is not
for the administration of the estate, it will protect him
from creditors. But in a suit for the administration of an
estate, if the Court orders him to pay money, that is a
perfect security to him ; for unless that were so it would
paralyse the functions of this Court. Now, what I have
to look to is, what is asked on the part of the executors,
and what on the part of the legatees, and what it is
proper for the Court to do. The case is one in which the
apprehended liability is in respect of shares sold but not
registered to the purchaser. It is impossible to say in
such a case that there may not be some demand against
the estate; and the liability of the executors is thus
brought nearer and in a more urgent way than under
other circumstances it might be. But to set apart a sum
to answer the liability would seem to be a great injustice
to the residuary legatee, and more than the executors
upon any principle are entitled to ask. If, in this case
the residuary legatee undertakes to make good any liability
or to answer any demand that may be made in respect o*
CASES IN CHANCERY.
509
these sold unregistered shares, that is enough, in my
opinion, to enable him to receive the money out of
court. Unquestionably, the order of the Court, so far hbadlako.
as the liability of the executors is concerned, is a complete judgment.
indemnity, and I would not have it supposed that I enter-
tain a moment's doubt about it.
MERRYWEATHER v. JONES.
Feb. 24 k 26.
This bUl was filed by Jane Merry weather, the wife of ^ifj^^^ wife
George Merryweather, by her next firiend, and it prayed who had
that the will of Merric Burrell, dated 1845, and the will to set aside a
of Elizabeth Burrell, dated 1856, the father and mother Sttiem?iltf
of the plaintiflF, might be administered under the direction ®f^^*^ J^®
of the Court. subsequently
The bill also prayed that a post-nuptial settlement dated the benefit of
the 18th December, 1858, might be declared void, and ^eforhw
that the trustees might be directed to transfer the trust wpanite use,
° remainder to
moneys to the plaintiff, or to her husband in her right, her (first)
freed from the trusts thereof. ufe^ remainder
At the date of the settlement the plaintiff was only JSidiSJ?I)nhe
eighteen years of age, and was married in 1856 to John marriage, in
default of
Waterhouse, from whom, on her husband's petition, by a children who
decree of the Divorce Court, she was divorced in 1861. twenty-one as
In November, 1861, she married her present husband, ^®^n®?^°^^
George Merryweather. The only child of the first marriage ^th a proviso,
was the defendant Alfred Clegg Waterhouse. and wife
should live
separate and
the wife should require alimony, tliat the wife's interest under the settlement should cease
— Dismissed with costs so far as it sought to set aside the wiiole settlement, but the Court
declared the proviso void.
510
CASES IN CHANCERY.
18C4. Under the will of her father Merric Burrell dated in
1845, the plaintiff was entitled to a share '^ freed from the
debts, control, or interference of any husband with whom
she might at any time happen to marry."
Statement. Under her mother's will dated in 1867 she was entitled
to a share for her sole and separate use, independently of
her present or future husband whom she might marry, not
to be subject to his debts, control^ &c. ; her receipts to be
a sufficient discharge.
By an indenture dated December, 1858, made between
John Waterhouse of the first part, the plaintiff, therein
described as his wife^ of the second part^ and two trustees
of the third part, after reciting the will and death of
Merric Burrell, and the death of Elizabeth Burrell,
.and that John Waterhouse and the plaintiff had agreed
to and with each other to settle all the estate and
interest of the plaintiff, or of John Waterhouse in her
right under the will of Merric Burrell, upon the trusts
therein mentioned, it was witnessed that in pursuance of
the agreement, and in consideration of the premises, and
for the nominal consideration therein mentioned, John
Waterhouse and the plaintiff thereby assigned unto the
two trustees^ their executors, administrators, and assigns,
all the estate and interest of John Waterhouse and the
plaintiff, or of John Waterhouse in right of his wife, under
the devises or bequests in the will of Merric Burrell, for
the benefit of the plaintiff, upon trust to pay the annual
proceeds thereof to the plaintiff during her life for her sole
and separate use, and not to be subject to the debts and
control of John Waterhouse, or any other person with
whom she might after his decease intermarry, and that her
receipts should alone be a sufficient discharge for the same;
and after her decease in trust for John Waterhouse during
his life, and from and after the decease of the survivor of
them, in trust for the child or children of the plaintiff, in
equal shares as tenants in common, with a trust over Jo
CASES IN CHANCERY.
511
favoar of the survivor in case any of the ehildten should
die under the age of twenty-one without having been
married ; but in case there should be no such child who
should attain that age or be married, then in trust for such
persons as she by deed or will (notwithstanding her then
or any future coverture) should appoint, and in de&ult of
appointment in trust for such persons as, at the decease of
the plaintiff, should be her next of kin, and entitled to the
same under the statute for distribution of intestates' effects,
as if the plaintiff had died unmarried and intestate.
The proviso was as follows : — " That if the defendant John
Waterhouse and the plaintiff should, at any time after the
execution of the settlement, separate and live apart, and
if the plaintiff should, at any time during such separation,
compel, or attempt to compel, John Waterhouse to pay or
allow her during such separation any alimony, interest, or
other sum or suras of money, then and in such case the
provision thereby made for the plaintiff should cease and
be at an end, and the defendant John Waterhouse should
be entitled to the interest and annual produce of the trust
fund in such and the same manner as if the plaintiff were
then dead, any rules of law or equity the contrary not-
with standing."
It was also provided that the plaintiff should accept the
provision and settlement thereby made in full satisfaction
and discharge of all dower, thirds^ or freebench, at law or
in equity, to which she might become entitled in the real
and personal estate of John Waterhouse.
By a deed of indenture dated the 16th May, 1859, made
between John Waterhouse of the first part, the plaintiff
of the second part^ the trustees of the previous deed of
1858 of the third part, and the defendants Taylor and
Booth of the fourth part, after reciting the indenture of
1858, and that the trustees thereof were desirous of being
discharged, it was stated that in accordance with the
power therein, and with the consent of John Waterhouse
1864.
Statement,
512
CASES IN CHANCERY.
1864.
Mbrrt-
WKATHER
V.
JONBS.
Statement.
and the plaintiff, they had appointed the defendants Taylor
and Booth to be trustees in their place.
The bill alleged that the deed of 1859, which it was
contended confirmed the- deed of settlement of 1858, was
prepared by the direction of John Waterhouse ; that the
plaintiff was not advised by any solicitor, and that she
executed it under the representation that it was absolutely
necessary that the foriAer trustees should be discharged,
and without any explanation of the deed^ or knowledge
that her rights would be affected thereby, and that if she
had known that the same would have operated in any vray
to confirm the deed of 1858 she would have refiised to
execute it.
The bill alleged that the defendant Waterhouse and the
trustees had taken possession of the property to which the
plaintiff was entitled under the will of her fiither and
mother^ and refiised to give the plaintiff any account of it
The bill also allege^ that parts of the property had not
been reduced into possession until after the dissolution of
the plaintiff's marriage.
Argument. Mr. Kenyoti and Mr. Hetherington for the plaintiff.—
' The introduction of a clause such as that in this settle-
ment was invalid^ and vitiated the whole instrument. In-
dependently of the clause in question the deed was invalid;
it was a post-nuptial settlement made by a minor under
pressure by her husband and without independent advice.
The very clause which the defendants felt they could not
defend showed that the plaintiff, when she allowed it to
be inserted, could not be properly advised.
Then it was said that the settlement had been confirmed
by the plaintiff, in 1859, but it was clear that the plaintiff
was not properly advised and was not aware of what she
was doing, and it was submitted that such an instrument
could be of no avail in this court [They cited on this
CASES IN CHANCERY.
51
point, Vamittart v. Vansittart (a), Weatmeath v. Weai-
ineath(h\ WeUa v. MaJJb(m{c)^ Weattneath v. Saliabury(d)^
Stamper v. Barker {e), Durant v. Titley (/), Bond v.
rayfor(flf).]
Mr. MaUna and Mr. Karalake^ for the principal defen-
dants, expressed their willingness to expunge the claose.
Mr. Oreene^ Mr. Oabome^ and Mr. Lake RxiaaeU and
Mr. Erakine^ appeared for the other defendants, but were
not called on.
1864.
Merry-
WBATBBR
V.
JONKS.
Arffument,
The Vice-Chancellor : —
Thb proviso is bad, and must be declared void.
The bill is filed by a lady, who while a married woman,
by a post-nuptial settlement, settled the personal property
to which she and her husband were unquestionably entitled
absolutely, to her separate use, upon trust, first of all for
herself for life, next upon trust in favour of the husband
(who had a life-estate merely), and then upon trust for
the children of the marriage ; and in default of children
there is a general power of appointment by the wife by
deed or will, and in default of such appointment the pro-
perty would go to her next of kin according to the statutes
for distribution of intestates' estates, as if she had died
unmarried. It is a perfectly rational settlement, and upon
the face of it there could be no question as to its validity.
But is said that the plaintifi^ was an infant at the time
she executed it. But here is a deed, dated in May, 1859,
expressly confirming the settlement ; and I am very glad
that it does, because it precludes all question as to the
plaintiff's right in this suit. The plaintiff appears as a
Judgmmt.
(a) 2 De G. & J. 249.
(h) Jac. 128.
(c) 31 Beav. 48.
(d) b BUgb, 339.
ie) 5 Mad. 157.
(/) 7 Price, 577.
(^) 2 J. & II. 473.
514
CASES IN CHANCEKY.
1864.
Mbary-
wbathbh
• V.
Jones.
Judgment.
divorced wife of the defendant Waterhouse, and as the
wife of another husband ; and her prajer, if allowed, would
put the property in the power of herself and her present
husband, and they would be able to do what they pleased
with it ; and I have no doubt that if they had it in their
possession they would not make so good a settlement as
the one now before the Court. Therefore, as to that part
of the bill it must be dismissed, and with costs, for this
Court will not encourage persons to come forward as next
friends of married women in order to set aside settlements
upon such grounds as those alleged at the bar. Some per-
son or other must pay the costs of this suit, and I shall
order the next friend to pay them, excepting so much as
relates to the provision for separation and alimony. Al-
though the main purpose of the suit fails, it is maintain-
able as an administration suit, even after striking out the
clause objected to, and which ought never to have been
inserted, and which now becomes inoperative. So far as
the bill seeks to set aside the whole settlement, it must
be dismissed.
CASES IN CHANCERY. 515
1864.
THORNTON v. FINCH.(a) Nov. 25.
X HIS was a motion by a judgment creditor of the de- On a bill by a
fendant William Hazzard for an injunction to restrain ^c^J^^^ofa
the defendants, who were mortcrasrees of William Hazzard, mortgagor, the
. , ® ° Court granted
from paying to the said William Hazzard any moneys they an injuncUon
might raise by virtue of any power of sale contained in moiSgagees
their mortgage security. ^blTrto* u
The bill stated that in 1859 and 1860 the defendant under their
William Hazzard was the owner of a piece of land at pacing the
Fisherton Anger, in the county of Wilts, and employed JJ^Jn^gop.^*
the plaintiflPs to build four houses thereon for him, which '^^ statute,
sec. 1, does
they completed about August^ 1860. not apply to an
William Hazzard was then indebted to the plaintiffs for redemption,
building those houses in a considerable sum, of which ^^"^^^^'
804/. 18«. 7(2. remained due to the plaintiffs in July, 1864.
The plaintiffs then commenced an action of debt against
the defendant William Hazzard, in the Court of Common
Pleas at Westminster, and recovered judgment thereon
on the 4th August, 1864, for the said sum of 804Z. IBs. 7c{.,
and 71. 9s, 10(2. for costs, and such judgment was duly
entered up against the defendant William Hazzard in the
Court of Common Pleas on the 4th August, 1864.
The said judgment was, on the 5th August, 1864, duly
registered with the Senior Master of the said Court of
Common Pleas.
The plaintifis on the 7th September, 1864, caused a
writ of elegit to be directed to the sheriff of Wiltshire, to
be issued out of the said Court of Common Pleas upon
the said judgment, against the goods and chattels, lands,
tenements, and hereditaments of the defendant William
Hazzard, in the said sheriff's bailiwick.
(a) This case has been published out of its order, as it is the first
time the point has been raised.
516
GASES IN CHANCERT.
1664.
Thornton
FmcH.
Statement.
Sach writ of elegit had been duly registered according
to the provisions of the Acts of the 23 & 24 Vic. c. 38,
and 27 & 28 Vic. c. 112, and had been delivered to the
sheriff of Wiltshire to be execated in due form of law.
At the time of the judgment being so entered up, and
the said writ of elegit being so issued and delivered, three of
the said houses and the ground on which they stood had
been sold. At the same time the defendant William
Hazzard was and is now seised in fee simple in possession,
subject to the mortgage hereinafter mentioned, ojf the pi(ice
of land, containing about an acre in extent, on which one
of the said houses so built by the plaintiffs as aforesaid is
standing.
The defendant William Hazzard had at the same time,
and has now, no goods nor chattels, and no other lands,
tenements, or hereditaments within the bailiwick of the
sheriff of Wiltshire.
The defendants Charles Herbert Martin Finch and
Thomas Henry Edward Compton held a conveyance to
them, made in August, 1860, by way of mortgage in fee
of the whole of the said houses and land, and by virtue
of the powers of sale in such mortgage they had sold the
said three houses so sold as aforesaid, and they held all
the deeds and documents of title relating to the said house
and land remaining unsold.
The same defendants allege that there is still something
due to them on their said mortgage.
By reason of the said deeds and documents of title being
in the hands of the defendants Charles Herbert Martin
Finch and Thomas Henry Edward Compton, the plain-
tiffs were impeded in procuring' the sheriff to proceed with
the further execution of the said writ of elegit; and if there
is anything still due to the defendants Charles Herbert
Martin Finch and Thomas Henry Edward Compton upon
their mortgage, it was doubtful whether the said house
and land could be delivered in execution to the plaintiffs
by the sheriff under the said writ.
18G4.
Thornton
V,
Finch.
Statimicnt*
CASES IN CHANCERY. 517
The defendants C. H. M. Finch and T. H. E. Compton
intend forthwith by virtue of their power of sale to sell
the said house and land, and allege that after such sale
and the receipt of the purchase-money, and the retaining
thereout of what they allege was still due to themselyes,
they intend to hold the balance of such purchase-money
in trust for the defendant William Hazzard.
The defendants Charles Herbert Martin Finch and
Thomas Henry Edward Compton ought not to pay such
b^ance of such purchase-money to the defendant William
Hazzard until he has satisfied the debt due from him to
the plaintiffs on the said judgment.
The nintli and tenth paragraphs of the answer of the
defendants Finch and Compton were as follows : —
9. " We admit that we intend forthwith, by virtue of our
power of sale, to sell the house and land, and we expect
very shortly to enter into a contract for that purpose.
We are advised that after such sale and the receipt of the
purchase-money^ and the retaining thereout of what is still
due to us, and our costs, charges^ and expenses as mort-
gagees, we shall hold the balance of such purchase-money
in trust for the defendant William Hazzard.
10. "We submit whether we ought or not to pay such
balance to William Hazzard until he has satisfied the debt
due to the plaintiffs on the judgment^ and we submit the
plaintiffs ought to obtain an order from the Court directing
us not to pay it, in order to justify our not doing so."
Mr. BatteUy for the plaintiff, now moved for an injunc- Argument.
tion, on the ground that it was not in the power of the
plaintiff to obtain possession of the land under a writ of
elegit according to the Act, the legal estate and posses-
sion being in the mortgagees.
Mr. Toivnsend, for the defendants, submitted to such
order as the Court might be pleased to umko.
VOL. IV. M M
518
CASES IN CUANCEKY.
1864.
The Vice-Chancellor granted the injunction.
Judgment,
Note.— The Act, sec. 1, enacts
that no judgment entered up
thereafter shall affect any land
until such land shall have been
actually delivered in execution
by virtue of a writ of elegit; A
judgment creditor cannot have
execution by a Jleri facias of an
equity of redemption of a lease*
hold estate: Lyster v. Dolland^
1 Ves. jun. 431, nor by an elegit
of an equity of redemption of a
freehold estate : Plunket v. Pear-
son, 2 Atk. 290. The uniform
remedy in both cases for the
judgment creditor has been, after
suing out the writs, to file a bill
to redeem: Smith v. Bursty 10
Hare, 51. The Act, however,
does not deprive a judgment cre-
ditor of his charge who is unable
to have the land delivered to him
in execution; for it recognises
(sec. 5) the charge of a judgement
creditor subsequent to the charge
of the judgment creditor to whom
the land has been delivered in
execution. If a judgment cre-
ditor could not have a charge
until the land had been delivered
to him in execution, a subsequent
judgment creditor could have no
charge, as he cannot have the
land delivered to him in execution
whilst possessed by the first judg-
ment creditor : Carter v. Hughes,
2 Huri, & Nor. 714.
The 1st, 2nd, & 6th sections 27 & 28 Vic. c. 112-^
1. ""So judgment, statute, nor recognisance to be entered up after the
passing of this Act shall affect any land, of whatever tenure, until such
land shall have been delivered in execution by virtue of a writ of elegit, or
other lawful authority, in pursuance of such judgment, statute, or recog-
nisance.
2. '^ In the construction of tliis Act the term 'judgment ' shall be taken
to inclade registered decrees, orders of courts of equity and bankruptcy,
and other orders having the operation of a judgment; and the term
* land ' shall be taken to include all hereditaments, corporeal or incorpo-
real, or any interest therein ; and the term * debtor ' shall be taken to
include husbands of married women, assignees of bankrupts, committees
of lunatics, and heirs or devisees of deceased persons.
5. ''If it shall appear on making such inquiries that any other debt doe
on any judgment, statute, or recognisance is a charge on such land, the
creditor entitled to the benefit of such charge, whether prior or subsequent
yto the charge of the petitioner, shall be served with notice of the said
order for sale, and shall after such service be bound thereby, and shall be
at liberty to attend the proceedings under the same, and to have the
benefit thereof; and the proceeds of such sale shall be distributed among
those who may be found entitled thereto according to their respective
priorities."
On the 5th June, 1865, on the hearing, the decree was made in the terms
of the decree in Messer v. Boyle , 21 Beav. 559 ; Leson, vol. 1, 401.
CASES IN CHANCERY. ' 519
1S04.
Feb, 10. 11,
12, 13, 15,
10, 17, 22,
23, & 24.
March 2,
THORNTON v. RAMSDEN. ^''^^o.
1 HE bill in this case was filed by Joseph Thornton, of The plaintiff
took, and was
Paddock, near Huddersfield, and Lee Dyson, his equitable let into, pos-
raortgagee, against Sir John William Ramsden, baronet, land, for the
the tenant for life, and other persons having certain in- ^y|^^f,® JJ^-
terests under certain indentures of lease and release dated cording to a
plan agreed
respectively the 4th and 5th April, 1814, and under the upon and at a
will of Sir John Ramsden, the grandfather of Sir J. ^thonrany
William Ramsden, the present defendant, dated the 26th agreement in
* wnting, and
January, 1838, to lands in the townships of Huddersfield, witiiout any
Almondbury, and Kirkheaton, all in the West Riding of ment for a
the County of York, known as the Ramsden Settled ter^o^vcars;
Estates. f^^r which '
the plaintiff
The bill prayed — expended a
1. That it might be. declared that the plaintiff was en- gum irbniui-
titled to have a lease granted to him of the property (in ^^t^e pTa?'"^
the bill mentioned) at Paddock for sixty years, renewable *"d continued
- \ t* lAi^"^ poasession
every twenty years, at a ground-rent^and fine to be fixed for several
as in the bill mentioned, or at such other ground-rent and duiy^paid the
fine as the Court should think fit. Or that, if the Court J^-^t^^rbaiiy
' fixed.
should be of opinion that the plaintiff Thornton was not The defend-
entitled to such lease, then that it might be declared that owner, having
the plaintiffs were entitled to a lien on the property at ^^^ ^f""
Paddock in the possession of the plaintiff Thornton, and ?J®f'™®^^*
that they could not be turned out of or otherwise disturbed the plaintiff
in such possession without being repaid the moneys ex- tenant at will
--Held, that
the plaintiff
Tcas entitled to an injunction, and to relief in equity.
The bill prayed in the alternative for a lease, or for compensation. A private Act of
Parliament having authorised leases for a certain duration, and on certain apecifled tt-rms,
to be granted in cases nearly similar where there was no written agreement, and it having
been the usage on the estate to double the rent when a lease was executed, the Court decreed
a lease to the plaintiff according to the Act of Parliament, and at the double rent.
The decision in Pilling v. Armitage, 12 Ves., not applicable to the case of a tenancy
created for the express purpose of expenditure by the tenant in building.
M M 2
520
CASES IN CHANCERY.
1864.
Thornton
V.
Bams DEN.
Statement,
pended by the plaintiff in and about the building and
laying out of such property, as a compensation to the
plaintiffs for such property, or as damages in respect
thereof, or such other compensation or damages as the
Court might think the plaintiffs under the circumstances
were entitled to. And that all necessary directions might
be given for granting to the plaintiff the before-mentioned
lease, or for ascertaining, raising, or paying to the plain-
tiffs the before*mentioned compensation or damages as
the case might require.
2. That the defendant Sir J. W. Ramsden might be
restrained from further proceeding on the notice to quit
served by liim on the plaintiff Thornton, and from com-
mencing any action in ejectment, or other proceeding at
law, to recover possession of the said premises ; or from
disturbing the plaintiff's possession of the property; and
that the defendants might pay the costs of the suit.
3. That all necessary directions might be given, ac-
counts taken, and inquiries made, &c. &c.
The bill set forth the title of the defendants, and
alleged that during the continuance of the ownership of
the late Sir John Ramsden (the settlor) the population
and buildings in certain townships on the Ramsden
estates had increased, and Huddersfield had become a
considerable manufacturing town.
The 9th to the 23rd paragraphs, which by the evidence
of several witnesses were proved to contain a correct
statement of the manner in which the Ramsden estates
were managed and dealt with, were as follows : —
9. The system or manner of dealing with his lands in
the townships of Huddersfield, &c., for building purposes
acted upon by Sir John Ramsden in and after the year
1816, up to the time of his decease, was as follows, that
is to say : — No agreements in writing were entered into bj
liim, or any agent authorised by him, with the persons
desirous of taking such lease or leases for building pur-
GASES IN CHANGERT.
521
poses, nor were anj leases granted to such persons before
the erection by them of houses or buildings on the said
land ; but upon application by persons desirous of taking
such land on lease for building purposes to the steward
or agent of Sir John Ramsden, such steward or agent
specified or mentioned to such persons respectively the
ground-rents proportioned to the superficial extent or
measurement of the land so proposed to be taken ; and
such persons were thereupon permitted to take possession
upon the understanding or agreement that after the
erection by them of substantial houses or buildings
thereon to the satisfaction of the steward or agent of
Sir J. Kamsden, leases would be granted to them
respectively in the form in which Sir J. Ramsden
was accustomed to grant building leases ; and after the
erection of such houses or buildings^ leases were granted
to such persons by Sir John Ramsden in the form or to
the effect of the former lease, set forth in the schedule B
to the Act of Parliament, 7 & 8 Vic, c. 21. The de-
fendants, or some of them, have possession of the court
rolls or books, which would show the system of dealing
with the land for building purposes.
10. By reason and on the faith and uniformity of the
system or manner of dealing with his said lands and here-
ditaments, and the fulfilment by the said Sir John Rams-
den of the expectations or promises so raised or given by
the steward or agent, many persons were induced to erect
houses and buildings on the said lands and hereditaments
of the said Sir John Ramsden, in the townships of Hud-
dersfield and Almondbury, and the adjoining townships,
without written agreements and without specification of
or reference to the terms or conditions of such leases, ex-
cept as before mentioned or referred to, on the faith of
leases being granted according to the system aforesaid,
11. The aforesaid custom or system of erecting build-
ings upon the Ramsden estates by persons without having
1S64.
THOBMTOir
V,
RAM8DBN,
Statement,
522
1864.
Thornton
r.
CASES IN CHANCERY.
leases granted to them> but upon the understanding or
agreement that leases for sixty years, renewable every
twenty years, would be granted to such persons when
they required such leases, is known as the tenant-right
tenure, and has existed for many years. Some of the most
ancient buildings in Huddersfield and the neighbour-
hood, which had been erected for a century at least before
they were replaced by the present modern erections, had
been built and were held upon the tenant-right tenure.
12. The tenant-right tenure with respect to the Bams-
den estates was as follows : — A person desirous of erect-
ing a house or other building applied to the agent of the
Samsden estates for a piece of ground such as such per-
son required for his building ; the piece of land was then
staked out and allotted, and made over to such person by
the agent, who fixed the annual rent to be paid for the
piece of land ; and such person then took possession
thereof, and erected his house and other building thereon,
upon the understanding and agreement between himself
and such agent that he should have a lease from the
ground landlord of the piece of land for sixty years, re-
newable every twenty years, whenever such person might
think fit to require such lease; and that such person
should never be disturbed in his possession. And the
name of such person was then entered by the said agent
in a book or roll kept for that purpose at Longley Hall,
one of the seats of the Bamsden family, situate close to
Huddersfield, as the tenant to the piece of land at a cer-
tain fixed annual rent. The house or buildings were
erected by such person, under the superintendence and
inspection of the said agent. If the person who had as
aforesaid erected the said house or building sold the pro-
perty, the name of the purchaser firom him was, upon an
application for that purpose made by such person and the
purchaser to the agent of the Ramsden estate at Longley
Hall, entered by such agent in the before-mentioned book
CASES IN CHANCERY.
523
or roll in lieu of the name of such person. If the person
who had as aforesaid erected the said house or building
mortgaged the property^ the name of the mortgagee from
him was, upon an application for that purpose made by
such person and the mortgagee to the said agent, entered
by such agent in the before-mentioned book or roll, in
addition to the name of such person. If the person who
had as aforesaid erected the said house or building died,
having devised the same, or intestate, the name or names
of the devisee or next of kin of such person, as the case
might be, was and were, upon an application for that
purpose to the said agent, entered by the said agent in
the said book or roll in lieu of the name of such person.
In most instances leases were not required by the persons
erecting houses or buildings as aforesaid, such persons
being desirous of saving the expense of leases. And, as
a rule both with respect to the original taking of the
pieces of land by various persons for the purposes of
building, and to sales and mortgages, and devises and in-
testacies, of and with respect to the same pieces of land,
and the buildings which had been erected thereon, no
deeds or writings were prepared or executed, but the
names of the various persons, and of the purchasers, or
mortgagees, or devisees, or next of kin under them, were,
as the cases required, entered in the book or roll kept at
Longley Hall for such purposes as aforesaid, and nothing
more was done. There were, however, occasional excep-
tions to this rule, some of such persons assigning their
tenant-right properties by deed, which deeds were after-
wards recognised by the said Sir John Ramsden, and the
names of the assignees under such deeds were entered in
the said book or roll. In addition to the said book or
roll, transfer books were kept and used at Longley Hall
from the year 1815 to the year 1858 for the purpose of
registering the said sales and mortgages, and showing the
quantity and descriptions of the interest thereby assigned.
1864.
Thornton
V,
Ramsdbn.
Statement,
524
1864.
TUORNTON
r.
Ramsden.
Statctnent,
CASES IN CHANCERY.
13. The persons applying for and obtaining plots or
pieces of land for building as aforesaid were and have
been for the most part persons in humble circumstances,
and depending for their livelihood^upon their daily work;
and such persons could not afford the expenses of a lease.
And in order to induce such persons, and the inhabitants
of Huddersfield and its neighbourhood generally, to avail
themselves of the opportunity^of acquiring plots or pieces
of ground, part of the Ramsden estates, to erect houses
or other buildings thereon, the late Sir John Ramsden
and his agents and the trustees of the Ramsden estates
during the minority of the defendant Sir John William
Ramsden, and their agents, and the last-named defendant
and his agents, since he attained his majority, respectively,
by their respective representations and acts, sad by every
means in their power respectively, encouraged persons to
erect buildings on the Ramsden estates upon the tenant-
right tenure, and respectively stated that there was no
occasion for leases, that such persons would be quite as
safe without leases as with leases, and that they would
never be disturbed in their possession : and the late Sir
John Ramsden and his agents, and the trustees of the
Ramsden estates during the minority of the defendant
Sir John William Ramsden and their agents, and the
last-named defendant since he attained his majority, and
his agents respectively, by their respective words, acts,
and deeds, and by every means in their power, encouraged
and fostered the understanding and belief that persons
taking pieces of land part of the Ramsden estates for the
purpose of building, could have leases of such pieces of
land for sixty years, renewable every twenty years, when-
ever they might require such leases, and that they never
should be disturbed in their possession ; and the said Sir
J. Ramsden, by his agents, and the trustees of the
Ramsden estates since his death, in order to encourage
and induce persons to erect buildings on the Ramsden
CASES IN CHANCERY, 525
estates upon the tenant-right tenure, informed applicants 1804.
for building plots that the rents would be less without a
lease than with a lease, and that they would save the
costs of a lease, and could have such lease whenever they —
. , . . 111. /. . \ Statement.
might require it ; and under the circumstances aforesaid
and herein appearing, the town of Huddersfield and its
neighbourhood have grown to their present proportions;
and the town of Huddersfield, which was formerly a small
country town, has become a considerable manufacturing
town, and more than one-half of the houses and buildings
in Huddersfield and its neighbourhood which have been
erected upon the Bamsden estates have been erected
upon and are held upon the said tenant-right tenure.
And the said Sir John Ramsden and his agents, and the
trustees of the Ramsden estates during the minority of -
the defendant Sir John William Ramsden and their
agents, and the last-named defendant since he attained
his majority, and his agents, respectively looked on whilst
the lastly before-mentioned houses and buildings erected
upon the tenant-right tenure as aforesaid were being
erected, and made no objection thereto; but, on the con-
trary, in every manner encouraged the erection of such
houses and buildings. And under the circumstances
herein appearing, the plaintiff Joseph Thornton and
very many other persons have erected buildings on
various parts of the Ramsden estates in Huddersfield
and its neighbourhood on the aforesaid tenant-right
tenure, and such tenure had always been universally re-
garded and treated as actual estate or property, and as a
tenure which could not be questioned or impeached ;
and for a long course of years tenant-right property in
Huddersfield and the neighbourhood has been sold and
dealt with as such in the open market, and botli by public
auction and private contract. And the said tenant-right
property has been sold, mortgaged, and bequeathed.
And these dealings with the tenant-right property have
526 CASES IN CHANCERY.
i^?^- ^^^^ invariably and as a matter of course recognised by
Thornton the duly authorised agents of the Kamsden estates ; and
RAaisDEx. facilities have always been afforded by such agents for
4Siat(mcnt. ^^^^ ^^^ transfers of the said tenant-right property.
And such agents have always, without 'question or hesi-
tation, upon the application of a purchaser, mortgagee,
or devisee of tenant-right property, entered the name of
such purchaser, mortgagee, or devisee in the before-
mentioned book or roll at Longley Hall ; and under the
circumstances herein appearing an entire confidence was
created in the said tenant-right system in Huddersfield
and the neighbourhood as conferring a good title to hold
land and buildings on such tenure, with a simple regis-
tration of title, without the expense of any deeds, and
between the years 1845 and 1857 994 additional holdings
were taken on the said estates, on the before-mentioned
tenant-right system. And, as was well known in Hud-
dersfield and the neighbourhood, Joseph Brook, deceased,
who was the duly authorised agent of the Kamsden
estates at Huddersfield and the neighbourhood, himself
erected various houses and buildings upon divers parts of the
Kamsden etates upon the aforesaid tenant-right tenure.
And he also purchased various tenant-right properties from
the tenant-right owners, and advanced considerable sums of
money upon the security of tenant-right property. And
he died possessed of considerable tenant-right property,
which is still held by his descendants. The said defend-
ant by his answer alleges that any person taking land on
the tenant-right tenure became subject, as he well knew>
to the risk of being disturbed in his possession if the
landlord should think it expedient to disturb him. The
plaintiffs charge the contrary thereof to be the truth :
the plaintiffs did not nor did either of them so know or
believe. The said defendant also by his answer alleges
that he believes it was distinctly understood that persons
holding under the said tenure were liable to be so dis-
CASES IN CHANCERY.
turbed : the plaintiffs, however, insist that the said de-
fendant could not and cannot so believe, and as evidence
of this the plaintiffs rely upon the facts herein appearing,
and also upon the fact that the defendant has* always re-
quired such persons to build according to plans, and to
enter into stipulations inconsistent with such belief; and
further upon the facts that there is no instance known of
disturbance of a tenant-right owner until the case of
Swift, mentioned in the said answer, except for the pur-
poses of new streets or improvements, and then only upon
full compensation.
14. In the year 1837 the plaintiff Thornton was
desirous of erecting a dwellinghouse for himself on the
Eamsden devised estates on a high ground at a place
called Paddock, situate about a mile from Huddersfield,
and in the parish or township of Huddersfield. The plot
or piece of land selected by the plaintiff Joseph Thornton
was part of the Ramsden devised estates, and was partly
an old stone quarry, with all the broken stone and rubbish
scattered about, and partly heath or moor land without
soil, and incapable in its then state of being cultivated.
The plaintiff Thornton selected this plot or piece of
land because the view was good and the air pure. If
such plot or piece of land had then been brought into the
market for sale the fee simple would not have realised
more than 10/. The plaintiff Thornton informed Mr.
Joseph Brook, who resided near Longley Hall, and
who was one of the duly authorised agents of the late Sir
John Ramsden, with respect to the Ramsden estates, and
the management and letting thereof, and who transacted
all the business relating to the Ramsden estates in the
absence of Mr. John Bower hereafter mentioned, of his
the plaintiff Thornton's desire to become the tenant
of the said piece or plot of land, and to erect a dwel-
linghouse for himself thereon. The said Mr. Joseph
Brook thereupon informed the said Mr. John Bower^
627
1864.
Statement i
528
1864.
TlIORNTOX
V.
Ramssen.
statement.
CASES IN CHANCERY.
who resided at Bjram^ in the said county of York, and
who was the principal agent of the late Sir John Rams-
den, with respect to the Bamsden estates, and the
management and letting thereof^ of the plaintiff Joseph
Thornton's aforesaid wishes; and the said Mr. John Bower,
haying come over to Iluddersfield from Byram to attend
a rent audit, did, in consequence of the information given
to him by the said Mr. Joseph Brook as aforesaid, visit
Paddock to inspect the said plot or piece of land. The
said John Bower was accompanied by Mr. Thomas Brook,
the son of the said Mr. Joseph Brook. The plaintiff
Thornton, and the said Mr. John Bower, and the said
Mr. Thomas Brook went together to the said plot or
piece of land, and the plaintiff Joseph Thornton pointed
out the same to the said Mr. John Bower, who thereupon
said, ^^ Well, this is a strange place to put a good house."
The plaintiff Thornton then pointed out to the said
Mr. John Bower as nearly as he the plaintiff Joseph
Thornton could the intended position of the dwelling-
house the plaintiff Thornton was desirous of building,
and generally the extent and boundary of the circum-
jacent land which the plaintiff Thornton wished to lay
out for gardens and pleasure ground. The said Mr.
John Bower approved of the plaintiff Thornton's plan,
and of such plaintiff having the land be required, and
told the plaintiff Thornton that he, Mr. John Bower,
should leave the staking out of the exact quantity of
land to be taken by the plaintiff Thornton to the said
Mr. Joseph Brook. The said Joseph Brook was the
only agent of the Bamsden estates who resided near
Huddersfield. He followed no other business, and he
was authorised by the said Sir John Kamsden and the
trustees to charge and receive, and he did charge and
receive, for his own use a fee on each allotment of land
made by him on the said tenant-right system, and also a
fee on each transfer. The plaintiff Thornton paid the
CASES IN CHANCERY.
529
said Joseph Brook 27. for his trouble in setting out the
land.
15. Some short time afterwards the said Mr. Thomas
Brook^ who lived with and assisted his father, the said
Mr. Joseph Brook, in the management of the Bamsden
estates, accompanied the plaintiff Thornton to the said
plot or piece of land, and assisted the plaintiff Thornton
in staking out the four corners of the dwellinghouse
for the builders; and after examining the adjoining
land it was agreed between the plaintiff Thornton
and the said Thomas Brook, acting on behalf of his
father, the said Mr. Joseph Brook, that the plaintiflF
Thornton should take as much of the adjoining land as
he required for garden and pleasure ground, and that
then the said Mr. Joseph Brook should fix the rent.
Subsequently the plaintiff Thornton determined upon
the quantity of land he should require for his said
dwellinghouse and the garden and pleasure grounds
thereto, and pointed out and explained this to the said
Mr. Joseph Brook, who himself viewed the land required
by the plaintiff Thornton, and agreed with the plaintiff
Thornton that the said plaintiff should have such land
for the purpose of building a dwellinghouse and laying
out a garden and pleasure grounds.
IG. The plaintiff Thornton had several interviews
with the said Mr. Joseph Brook on the subject of the
ground-rent to be paid by the plaintiff Thornton to the
agent of the Ramsden estates for the land required by
the plaintiff Thornton as aforesaid; and Mr. Josepli
Brook in the same year (1837) fixed the annual rent
of 47. as the ground-rent to be paid by the plaintiff
Thornton, and which ground-rent the plaintiff Thornton
has paid ever since.
17. The plaintiff Thornton commenced building his
said dwellinghouse and laying out the garden and
pleasure grounds on the said land, which it had been a >
1S64.
Thornton
nAMSDEX.
StaietneiU,
530
1864.
Statement,
CASES IN CHANCERY.
aforesaid agreed that the plaintiff Thornton should have ;
and during the time the building of the said dwelling-
house was going on, and when such house was almost
completed, Mr. Joseph Brook came to the land for the
purpose of inspecting the building and the improvements.
He was accompanied by the plaintiff Thornton's father,
who was then living ; and the plaintiff Thornton then
asked Mr. Joseph Brook his opinion as to the prudence
or not of taking a lease of the said land and the buildings
thereon, and Mr. Joseph Brook then assured the plaintiff
Thornton, and stated to him that it would be folly to
have a lease when the plaintiff Thornton was equally safe
and secure without a lease as with one, and , that the
plaintiff Thornton would get a lease whenever he wanted
one ; the lease so as aforesaid referred to by Mr. Joseph
Brook, and which he stated the plaintiff Thornton could
get whenever he wanted, was a lease for sixty years, re-
newable every twenty years upon payment of two years'
ground-rent as a fine. No other lease then existed or
was known with reference to the Bamsden estates in
Huddersfield and its neighbourhood.
18. The plaintiff Thornton completed the building of
his said dwellinghouse, and laid out the gardens and
pleasure grounds, under the superintendence of Mr.
Joseph Brook ; and such dwellinghouse and ["gardens
were completed and laid out in or about the early
part of the year 1839, at which time the plaintiff Thorn-
ton went to reside there. Such dwellinghouse is built
of the most substantial and of the very best materials,
and is now as sound and in as good repair as when it was
completed. The plaintiff Thornton has from time to
time been at considerable expense in laying out and
making the garden and pleasure grounds, and they have
now assumed a very ornamental character. The garden
and pleasure grounds have been made and laid out prin-
cipally on shelvings of broken rock and waste land, and
CASES IN CHANCERY.
531
the plaintiiF Thornton has resided in the said dwelling-
house since it was completed.
19. The plaintiff Thornton did not, when he took the
before-mentioned plot or piece of land, sign any paper or
document.
20. The plaintiff Thornton took the said plot or piece
of land, built his dwellinghouse thereon, and laid out
the garden and pleasure grounds on the belief and assu-
rance on his part, and which was universally entertained
in Huddersfield and its neighbourhood, and which had
been encouraged and fostered by the late Sir John
Bamsden and his agents as aforesaid, that the plaintiff
Thornton could have a lease of the land, and the build-
ings and improvements thereon, for sixty years, renew-
able every twenty years, whenever he the plaintiff
Thornton should require such a lease; and that the
plaintiff Thornton would never be disturbed in his pos-
session; and on the knowledge that very many other
persons had built houses on the Kamsden estates on the
same belief and assurance, and that they had never
been disturbed in their possession, and that very many
other persons who had taken plots of the Kamsden estates,
and had erected buildings thereon upon the before-men-
tioned belief and assurance, had on their application for
that purpose had leases granted to them of such plots of
land and buildings for sixty years, renewable every
twenty years ; and upon the promise and assurance made
to the plaintiff Thornton by the said Mr. Joseph Brook
as aforesaid that the plaintiff Thornton was equally as
safe and secure without a lease as with one, and that
the plaintiff* Thornton could have a lease whenever he
wanted one. And the plaintiff Thornton would not have
taken the said plot of land had it not been for the before-
mentioned belief and assurance and promise.
20a. The said Mr. John Bower died in May, 1844, and
George Loch, Esquire, was appointed the principal agent
1864.
Thorn TOH
r.
Hausoek.
Statement.
532
CASES IN CHANCERY.
1864.
Thornton
V,
RA3J(iDEN.
Statement,
of the Kamsden estates in his place ; and in October of
that year Mr. Alexander Hathorn was appointed agent
of the said estates in Huddersfield and the neighbourhood
in lieu of the said Joseph Brook, who was about that
time dismissed from his said agency.
21. After the plaintiff Thornton had taken the before-
mentioned piece or plot of ground the plaintiflF Thorn-
ton was entered in the said book or roll at Longley
Hall as the tenant thereof, at the agreed yearly ground-
rent of 4Z. The bill noticed that in his answer Sir J.
Ramsden averred that the plaintiff was not entered in
the book till April, 1843, and proceeded to allege that
the plaintiff always was led to believe that he had been
entered in the year 1837, and that if he were not it was
the neglect or default of Brook or Bower.
22. In the year 1845 the plaintiff Thornton found
himself inconvenienced for want of out-door offices and
farm buildings, and the plaintiff Thornton then applied
to Mr. Alexander Hathorn, who was then the resident
agent at Longley Hall, acting under and in behalf of
George Loch, Esquire, the then principal agent duly
authorised to manage and let the Bamsden estates, to
assign to the plaintiff Tliornton another plot of building
ground at Paddock, also part of the Ramsden devised
estates. Shortly after this application two persons who
stated themselves to be, as in fact they were, in the
employment of the said Mr. Thomas Brook, who had
at that time beciome and then was one of the duly autho-
rised surveyors and agents of the Bamsden estates, came
to the plaintiff Thornton's said dwellinghouse, and
measured the additional ground which the plaintiff
Thornton required as aforesaid ; and the plaintiff Thorn-
ton thereupon proceeded to erect, and erected on such
additional ground, and which as aforesaid formed part of
the Bamsden devised estates, the buildings which he
required, and the same were erected under the snperii:-
GASES m CHANCERY.
tendence of the said Mr. Alexander Hathom. Some
time after the plaintiff Thornton had completed such
buildings, the plaintiff Thornton received a written or
printed letter from Longley Hall, signed by the said
Alexander Hathorn, informing the plaintiff Joseph
Thornton that the plan of the additional ground required
by the plaintiff Joseph Thornton was approved, and that
the annual rent in respect of such additional ground
would be 1/. 7A; and the plaintiff Joseph Thornton
has ever since paid such last-mentioned rent
23. The plaintiff Thornton has expended at least
1850Z. in erecting the said dwellinghouse, offices, and
buildings, and laying out the said garden and pleasure
grounds; and such dwellinghouse, offices, and buildings,
garden, and pleasure grounds are hereinafter referred to
as the property of the plaintiff at Paddock.
633
1804.
Thornton
V,
Ramsdun.
Statauvufm
The father of the present baronet died in 1836. Sir
John Ramsden made his will, under which Sir John
William Kamsden became tenant for life, subject to im-
peachment for waste, with remainders over to his first
and other sons in tail male, &c. The will contained cer-
tain leasing powers, to be exercised by the tenant for life
for the time being entitled in possession, if of full age ; if
not, then by his guardian or guardians, and also by the
guardian or guardians of any tenant in tail in possession
under the age of twenty-one, entitled under and by virtue
of the will during the minority of such tenant in tail for
the purpose of building, improving, or repairing, and to
renew existing leases. The words of the power as to
building leases were to grant leases for ninety -nine years,
** or upon such and the same or the like terms as those
upon which leases of the estate have already been granted,
and to renew any existing leases upon the present sys-
tem." The will contained powers of sale, enfranchise-
VOL. IV. N N
statement*
534 CARES IN CHA^'CEUY.
1804. nient, exchange, and partition, and for the appointment
Tii^^oN of »ew trustees.
Rams'den ^^^ John Ramsden died in July, 1839, without altering
his will. The trustees of the will in 1844-5 applied for
and obtained an Act enlarging the powers to grant leases
of the hereditaments in the townships of Huddersfield^
&c., contained in Sir John Bamsden's will. The Act
7 & 8 Vic. c. 21 contained the following recitals: —
" And whereas during the continuance of the owner-
ship of Sir John Ramsden the population and buildings
on his estate in the townships of Huddersfield and Al-
mondburj, &c. &c., greatly increased, and Huddersfield
has become a considerable manufacturing town, and is for
the most part built on the land of Sir John Ramsden :
And whereas the system or manner of dealing with his
lands and hereditaments in the townships of Huddersfield
and Almondbury, and the said adjoining townships, for
building purposes, acted upon by the said Sir John
Ramsden in and after the year 1816, and up to the time
of his decease, was as follows, that is to say, no agree-
ments in writing were entered into by the said Sir John
Ramsden, or any agent by him authorised, with the per-
sons desirous of taking such land on lease for building
purposes ; nor were any leases granted to such persons
before the erection by them of houses or buildings on the
said land ; but, upon application by persons desirous of
taking such land on lease for building purposes to the
steward or agent of Sir J. Ramsden, such steward or
agent specified or mentioned to such person respectively
the ground-rents, or rate of ground-rent, proportioned to
the superficial extent or measurement of the land so pro-
posed to be taken; and such persons were thereupon
permitted to take possession, upon the understanding or
agreement that, after the erection by the persons so taking
possession of such lands of substantial houses or buildings
thereon to the satisfaction of the steward or agent of the
Ramrdkn.
Statrvnnt.
CASES IN OHANCKRV. 535
said Sir John Bamsden, leases would be granted to them if^«4.
respectively in the form in which Sir J. Ranisden was tiumTnton
accustomed to grant building leases; and after the erection
of such houses or buildings leases were granted to such
persons by the said Sir J. Ramsden in the form or to the
effect of the lease in schedule B to this Act: And
whereas by reason and on the faith of the uniformity of
the system or manner of dealing with his said lands and
hereditaments^ and the fulfilment by Sir^ J. Bamsden
of the expectations or promises so raised or given by
his steward or agent, many persons were induced to erect
houses and buildings on the said lands, &c., of Sir J*
Bamsden in the said township of Huddersfield and Al-
mondbury, and the adjoining townships, without written
agreements, and without specification of or reference to
the terms or conditions of such leases, except as before
mentioned or referred to, on the faith of leases being
granted according to the system aforesaid" [The Act
then recited that the leases granted in pursuance of the
said custom were in the form of the lease in the schedule,
except as to the covenant relating to lights] : " And
whereas, at the time of the death of Sir J. Bamsden
many persons who had applied for and taken land as
aforesaid had erected and built houses and buildings, and
were in the course of erecting houses and buildings, on
the said lands and hereditaments, but the leases of such
lands, houses, and buildings had not been granted : And
whereas in many instances leases which ought to have
been granted by Sir J. Bamsden in his lifetime, pursuant
to such applications and understanding, and according to
such system as aforesaid, were not so granted by him by
reason of the delay in preparing such leases by his
steward John Bower, who was a person of advanced age
and declining health, with a great arrear of business upon
him : * • • And whereas since the death of Sir J.
Bamsden difficulties have arisen concerning the renewal .
N N 2
536
CASES IN CHANCERY.
1804.
Thornton
r.
Ramsojsx.
Statement,
of leases in pursuance of the covenants for renewal entered
into bj Sir J. Kamsden : And whereas difficulties have
also arisen as to the power to grant leases to the
persons who applied for and took land as aforesaid
in the lifetime of Sir J. Bamsden^ and who have
erected and built houses and buildings on such land
on the faith of the system and understanding hereinbefore
mentioned ; • ♦ « And whereas it would be greatly
for the benefit of the persons who are and may be inte-
rested under the limitations of the said will of the said
Sir J. Ramsden, if more effectual powers were given of
renewing and granting leases of the said hereditaments^
&C.9 and with authority to insert in the leases to be
renewed and granted respectively explicit covenants for
the renewal thereof ; and if powers were also given for
executing the preliminary contracts for leases, and for
appropriating land for streets :" The Act then enacted
that it should be lawful for the guardians of Sir
J. W. Bamsden during his minority, and the survivor
of them, and on his attaining twenty-one, or dying
under that age, for the tenant for life for the time being
in possession or remainder expectant, on the determina-
tion of certain terms, &c., by indenture, &c., to demise,
lease, or grant to any person or persons who in the
lifetime of Sir J. Ramsden applied for and took under
the system hereinbefore described, and on the faith of a
lease or leases being granted according to such system as
aforesaid, any part of the said lands devised (mentioned
in schedule), and who hath or have erected and built
any house or houses, building or buildings thereon, for
the term and with and subject to the covenants, provisoes,
and agreements mentioned in the lease appended to
the Act, with such variations as the parcels, num-
ber of parties, and circumstances may require, at the
ground-rent or ground-rents mentioned and stated with
reference to each particular case respectively, the term to
CASES IN CHANCERY,
537
be granted by eacli such lease respectively to com-
mence and be computed from the d«ay or time, or from
some date not exceeding six months from the day or time,
when the house or houses, building or buildings on the
land so to be demised shall have been completed. The
Act then provided for the granting future original leases^
and for the terms of renewal. The lease contained in
the schedule was for a term of sixty years, with a cove-
nant for renewal by Sir J. Ramsden and his heirs at the
expiration of twenty years from the term or renewed
term, on payment of one year's full improved value, with
a stipulation that if the lessee should neglect for six
months after the expiration of the said twenty years, the
said J. Ramsden and his heirs should not be compellable
to grant a further term until the expiration of forty
years ; and then the said Sir J. Ramsden or his heirs
should make a new demise for sixty years, on payment of
a fine of ten years' value (a) ; and if the lessee should
fail to apply within twelve months after the expiration of
forty years, then he shall forfeit his claim.
It appeared from the evidence that Joseph Brook was
examined before the Committee of the House of Lords
to prove the preamble of the bill as to the usage of the
estate as to letting land for building without granting
leases. In 1857, as alleged by the bill, the plaintiff
having occasion to borrow a sum of money, offered his
property at Paddock to the club as security for the proposed
loan. The security was approved, and the money advanced.
By an arrangement with the club, the plaintiff and Mr.
Lee Dyson, the president of the club, went to Longley
Hall, in order to have the name of the club entered
jointly with the name of the plaintiff, which was done.
The bill alleged that such entry was made solely for
the purpose of giving security to the club, and was
1864«
Thounton
V.
Ramssbn.
statement.
(a) The words ''full improved " in the former clause do not occur here,
538
18G4.
Thornton
V.
Ramsdkn.
Statement*
CASES IN CHANCERY.
the only security except a promissory note. On the
occasion when the name of the Commercial Money Club
was being entered on the roll the plaintiiBf and Mr, Lee
Dyson were not there more than five minutes ; two blank
forms were placed before them by the agent of the estate
or the clerk ; neither of the plaintiffs read them through.
They signed them, without suspecting that the property
at Paddock could be prejudiced. They submitted that
they were not binding on the plaintifis. No copies were
given them, but on the 22nd January, 1864, they ob-
tained copies, which were in the following terms : —
" Huddersfield.
" I, Joseph Thornton, of Paddock, near Huddersfield,
in the county of York, manufacturer, do hereby give up
possession of a dwellinghouse and outbuildings, situated
at Paddock aforesaid, unto Sir John William Ramsden,
Bart.; and I, the undersigned Lee Dyson, of New
Street, for and on behalf of the Commercial Inn Money
Club, do agree to become tenant at will for the said
premises under the said Sir John William Kamsden,
Bart., to hold from the 13th May last, at such rent as he,
the said Sir John William Bamsden, Bart., shall from
time to time think proper to fix."
"Huddersfield.
" I, Joseph Thornton, of Paddock, near Huddersfield,
in the county of York, manufacturer, do hereby give up
possession of a barn and mistal, situated at Paddock
aforesaid, unto Sir John William Bamsden, Bart. ; and
I, the undersigned Lee Dyson, of New Street, Hudders-
field, for and on behalf of the Commercial Inn Money
Club, do agree to become tenant at will for the said
premises unto the said Sir John William Bamsden, Bart.,
to hold from the 13th May last, at such rent as he, the
CASES IN CHANCER^
said Sir John William Ramsden^ Bart., shall from time
to time think proper to fix."
It appeared from the evidence that since the present
baronet had attained his majority attempts had been
made to substitute for the former system leases for
ninety-nine years, or for his own life, but this arrange-
ment not being satisfactory to the tenants, in 1859
he applied for an Act (22 & 23 Vic, Cap. 4), called the
Kamsden Leasing Act, 1859, which recited, inter alia,
" that about one half of the town of Huddersfield, and
parts of neighbouring villages, had been built by
persons, being tenants from year to year, at their own ex-
pence, to the estimated aggregate amount of at least
750,000/., without their having any lease or agreement
for a lease thereof, and in the expectation only of not
being disturbed in their possession; and many persons, so
being tenants from year to year, had paid their ground-
rents in respect of such their holdings, but, in consequence
of the uncertainty of their tenure, the buildings had in
many instances been suffered to fall into decay or want
of repair, and it would require a considerable sum to put
the whole of them into good repair ; and that the number
of the buildings amounted to about 2900, of a yearly
rateable value exceeding 50,000/."
The Act went on to recite that the ground-rents were
estimated at about 4000/. a year, and that it was ex-
pedient and just to the persons who have so built on the
holdings, or have succeeded by purchase or otherwise to
the same in the expectation of not being so disturbed,
and it would be for the benefit of Sir J. W. Eams-
den, and the persons entitled in remainder to the estates
now subject to the therein recited limitations of Sir J.
Kamsden's will and the late settlement, that provi-
sion should be made for granting leases of the hold-
ings, or some of them, or parts thereof, on long terms of
539
1664.
Thornton
Ramsuen.
Statement,
540
CASES IN CHANCERY.
1864.
Statement
years^ on proper terms and conditions, having regard to
the circumstances of the cases.
The Act then enacted that the powers given by the
Act should be exerciseable by the person or persons who
were by Sir J. Bamsden's will empowered to grant
building, improving, or repairing leases, and that the
lessor under the Act might from time to time grant
leases according to this Act of any parts of the mes-
suages, lands, &c. &c., specified in the first schedule,
to any persons who before the passing of the Act had
built thereon, at their own expense, without being lessee
thereof, or to such other person as the lessor, in his uncon-
trolled judgment and entire discretion, considered justly
entitled to such lease, in respect of any of the buildings
specified in the first schedule, whether the buildings were
made at their expense or not; or if those persons should
be, by reason of any incapacity, unable to acceptthe lease,
then to any other person on their behalf.
The Act then provided that the following terms and
conditions should apply to the leases under the Act : —
First, the lease might comprise such of the heredita-
ments within the power of leasing as the lessor thought
fit.
Secondly, the lease should be for a term to be fixed
by the lessor, but not exceeding ninety-nine years, at a
yearly rent, without a fine.
Thirdly, the lease to take eficct immediately, or
within twelve months after the granting thereof, and
not otherwise, in reversion.
Fourthly, the yearly rent, where the distinct rent of
the land could be ascertained, should not be less than
had been hitherto paid, and might, if the lessor thought
fit, be as much as the land, if it were bare of buildings,
might be worth if let for building purposes.
Fiflhly, the lease to contain the covenants, &c., speci-
fied in the Act.
CASES IN CHANCERY. 54I
The schedule contained the following description of 1864.
the plaintiff's property : —
Tenant's Name.
Thornton Joseph
Commercial Inn
Club
Joseph Thornton
Joint Tenants.
Commercial Inn
Club
No. on
Plan.
417 1
418)
419)
420 )
421 I
424)
425a
Description of
Property.
Dwellinghonse,
Cottage, Plea-
sure Grounds
Gardens, Wash-
house, Coal
Place
Priory
Bam, Mistal,
Stables, Sheds,
Piggeries, and
Yard
Paddock
Situation.
Paddock
TnORKTON
V.
Ramsden.
Stateweni,
The bill was promoted by Sir J . W. Ramsden, and while
it was pending there were public meetings held by the
tenants of the estate, and a committee was appointed,
who suggested several variations, all of which, but one,
that all the new leases should be for a term of ninety-
nine years, the defendant, as he alleged in his answer,
adopted. On the 8th August, 1859, a public meeting
was held which passed resolutions approving of the
measure. The plaintiff Thornton was present at the meet-
ing. One of the resolutions passed was the acceptance of
the bill, and returning their thanks to Sir J. W. Ramsden,
but expressing regret that the clause making all the
new leases ninety-nine years was not adopted. The an-
swer alleged that the plaintiff Thornton was a member
of the committee, which, however, he denied.
Shortly after the passing of the Act Sir J. W. Rams-
den caused the following advertisement to be inserted
in the local papers : —
542
CASES IN CHANCERY.
1864.
Thorhton
17.
Ramsden.
statement.
'^ Bamsden Estate Leasing Act^ 1859.
" Notice is hereby given that Sir J. W. Ramsden is
now prepared to receive applications for leases to be
granted under the provisions of this Act^ and all persons
who are desirous of obtaining such leases are requested
to make applications forthwith at the estate office^ Long-
ley Hall.
"(Signed) Alex. Hathobn.
" Longley Hall^
« 19th Aug., 1859."
On the 3rd October the members of the committee
had an interview with Sir J. W. Bamsden, the plaintiff
being present, in which he promised as a rule to grant
leases at rents equal to the present value of the ground,
provided the buildings were good, and an application
speedily made. The plaintiff Thornton shortly afte]>
wards went to Longley Hall, and signed an application
in the following terms : —
'' To Sir John W. Bamsden, Bart.
« Huddersfield, 12th Oct., 1859.
" Sir, — In compliance with the public notice issued by
you on the 19th August, 1859, I beg to apply for a
lease to be granted under the powers contained in the
Bamsden Estate Leasing Act, 1859, of the under-
mentioned premises, being part of the hereditaments
described in the first schedule to the Act.
" I am. Sir,
" Your most obedient servant,
"Joseph Thornton.
••HO. DESCRIPTION OF PREMISES.
417, 418. Dwellinghouse, Cottage, Pleasure Grounds.
419, 420. Gardens, Washhouse, Coal Place, and
421,424. Priory.
425a. Barn, Mistal, Stables, Shed, Piggeries, and
Yard."
OASES IN CHANCERY.
In May, 1860, Sir J. W. Bamsden caused the follow-
ing advertisement to be inserted in the local papers : —
" Longley Hall, May, 1860.
" Sir J. Ramsden's Estate Leasing Act, 1859.
" Sir J. W. Ramsden has appointed Mr. Hewitt and
Mr. Hathorn to make joint valuation of the property
comprised in schedule 1 to the above Act. They will
begin the valuation on (he 30th instant.
** All parties desirous of obtaining a lease for the full
term of ninety-nine years under the above Act must
apply to Mr. Hathorn, at Longley Hall, before August
13th, 1860. The lease will date from the passing' of the
Act, but the revised rents will only come into operation
during the current half-year, and the first payment under
the new valuation will be made at the rent audit in
November next."
A copy of this notice was sent to the plaintifi^, as well
as the other tenants. On the 7th November the plaintiiF
Thornton, finding that his rent would be increased to
13/., withdrew his application.
Up to the filing of the first answer it appeared
(par. 126) that 1460 applications had been made by
tenants for leases under the Act ; 230 had been granted,
and about 500 withdrawn.
On the appearance of the above advertisement in May,
1860, considerable dissatisfaction was expressed by some of
the tenants, public meetings held, and a memorial was pre-
sented to Sir J. W. Ramsden objecting mainly to the
increase of the rents.
The bill alleged, as evidence that the tenants were
not mere tenants at will, what took place in respect of
the Huddersfield and Manchester and Sheffield Rail-
ways. Paragraph 50 stated that in 1845 the Hudders-
field and Sheffield, and Huddersfield and Manchester
Railway Companies recjuired to take several buildings
543
1864.
Tborhton
V.
Ramsdbn.
Statement,
544
CASES IN CHANCERY.
1864.
Statement,
on part of the Ramsden estates at Hudderfifield, Paddock^
(Sbc, held on the tenant-right tenure^ and understanding
that the owners could have leases renewable every twenty
years. The companies having required such leases to be
produced, the owners applied to the trustees, who granted
such leases for sixty years, renewable every twenty years.
The bill alleged that every one of such leases contained a
recital that the lessee, being desirous of taking on lease
for building purposes the piece of ground thereinafter
mentioned, did in the lifetime of Sir J. Kamsden apply for
that purpose to the steward or agent of Sir J. Kamsden,
and was thereupon permitted to take the ground and to
erect buildings on the understanding and agreement that
such leases should be granted to him. The bill further
alleged that after the leases were granted the railway
companies paid to them the compensation payable in
respect of such property ; that other holders of plots
of land taken by the railway companies also received
compensation, and expended such money in erections on
other parts of the estate on the tenant-right system;
and in such leases an agreement in writing was entered
into between the tenants and Alexander Hathorn, repre-
senting the trustees, that such persons should pay such
ground-rent as was usually charged to tenants building
on the said estates without leases, and that they should
be entered in the rent roll as tenants in the usual man-
ner in respect of such other part of the said estates,
and the buildings thereon; that during the lifetime of
the late Sir J. Ramsden, and during the minority of Sir
J. W. Ramsden, and subsequently, houses erected on
the tenant-right tenure being required for the improve-
ment of the town of Huddersfield were taken, and that
the owners received from Sir John Ramsden, the trus-
tees, and also from Sir J. W. Ramsden, through the
Huddersfield Improvement Commissioners, compensation
in respect of such houses, &c., the amount of which was
statement*
CASES IN CHANCERY. 546
fixed on the basis that the owners could not be disturbed ^^04.
in their possession without compensation. Thornton
The following paragraphs of the bill showed the course ramsdbn.
of proceeding on the estate: —
"51a. Under the provisions of * The Huddersfield Im-
provement Act, 1848,' and of the secondly hereinbefore-
stated Act of Parliament, large sums of money have
been expended by the Huddersfield Improvement Com-
missioners in laying out and forming new streets in
Huddersfield, on parts of the Kamsden estates, and in
sewering, draining, and paving such streets, and the
expenses of such works have been and are under
the last-mentioned Acts charged upon the Kamsden
estates, and have been and are now being recovered by
the said commissioners by means of special rates laid
annually for the period of thirty years upon and payable
by the oVvner for the time being of the Ramsden estates. ^
And since the defendant Sir John William Bamsden has^i
attained his age of twenty-one years such defendant has
demanded and received from various owners of houses and
buildings erected upon the Kamsden estates adjoining such
new streets, and held upon the before-mentioned tenant-
right tenure, certain sums of money which the last-named
defendant stated to be the respective proportions payable
by such owners in respect of their various properties of
the before-mentioned sums of money expended as afore-
said. And in all cases in which the defendant Sir John
AVilliam Kamsden has demanded and received sums of
money as last aforesaid such defendant has treated and
dealt with the persons from whom he has demanded and
received such sums of money as the owners of their
aforesaid respective properties, and on the same footing
and in the same manner as tenants of other parts of the
Kamsden estates, to whom leases of such other parts of
the Kamsden estates, for sixty years, renewable every
twenty years as aforesaid, have been granted.
546
CASES IN CHANCERT.
1864.
Thorkton
V.
Ramsden.
Statement,
^^ 5lb. The Huddersfield Improvement Commissioners
are authorised by ' The Huddersfield Improvement Act,
1848/ to execute sanitary works on private property as
private improvements, and to recover the expenses thereof
from the owners of such properties; and such com-
missioners, in carrying out the provisions of the said Act,
invariably treat and deal with the holders of tenant-right
properties at Huddersfield and its neighbourhood as the
actual owners of such properties, and make and levy
rates upon them as such holders, and in case of non-
payment estreat the rents payable by the sub-tenants of
such properties. And such commissioners have by actions
at law recovered from the holders of tenant-right pro-
perties the before-mentioned expenses.
** 51c. The Huddersfield Improvement Act of 1848 was
obtained with the sanction of the trustees of the Rams-
den estates, and the agent of such trustees in fact joined
in obtaining such Act. And the defendant Sir J. W.
Bamsden has under that Act the power of appointing,
and has appointed, and does appoint three of the twenty-
one commissioners who carry out the provisions of the
said Act, and such three of the said commissioners sit
permanently to protect the interests of the last-named
defendant, and of the other persons interested in the
Bamsden estates.
" 52. The defendant Sir J. W. Bamsden during his
minority, and after he came of age, and when he exe-
cuted the before-stated indenture of the 19tli of April,
1853, well knew of the before-mentioned tenant-right
tenure, and that the various tenant-right owners holding
parts of the Bamsden estates as aforesaid (and which
estates as before stated comprise * The Bamsden Settled
Estates,' and *The Bamsden Devised Estates') had
taken their respective holdings, and erected buildings
thereon, under the before-mentioned belief, assurance,
and understanding that they could have leases for sixty
CASES IN CHANCERY.
547
years, renewable every twenty years, of their respective
holdings, whenever they might respectively think proper
to apply for such leases, and that they could never be
disturbed in the possession of their respective holdings
without receiving compensation. The defendant Sir
J. W. Ramsden during his minority, and after he came
of age, and when he executed the said indenture of
the 19th of April, 1853, well knew that the plaintiflF
Thornton had taken the before-mentioned pieces of land
and erected buildings thereon as aforesaid upon the
before-mentioned belief, assurance, and understanding
that such plaintiff could have a lease for sixty years, re-
newable every twenty years, of his said property when
he might think proper to require such a lease, and that
the plaintiff Thornton could never be disturbed in his
]M)Ssession without receiving compensation. And the
defendant Sir J. W. Ramsden never in any manner,
until he served the notice to quit as hereinafter men-
tioned, questioned or disputed the before-mentioned
rights of the said tenant-right owners, or the plaintiffs,
or any or either of them, but, on the contrary, always
acquiesced in and admitted, and by various acts, matters,
and things acknowledged and confirmed such rights.
" 63. In the month of November, 1861, the plaintiff
Thornton, by the direction of the defendant Sir J. W.
Ramsden, was served with a notice in writing signed by
such defendant as follows : — .
IS64.
Thornton
r.
Ramsdf.n.
Statcmmi,
*^ * I, the undersigned. Sir John William Ramsden,
baronet, do hereby give you notice and require you to
quit and deliver up to me quiet and peaceable possession
of the dwellinghouse, cottage, pleasure grounds, gardens,
bam, mistal, and stable, with the appurtenances, situate at
Paddock, in the parish of Huddersfield, in the county of
York, which you now hold and rent of me, on the 11th
day of May now next ensuing, provided your tenancy
548
1864.
Thornton
t?.
RA.MSDRN.
Statement,
CASES IN CHANCERY,
originally commenced at that time, or otherwise at or
upon such other day or time, or several days or times, as
the year of your tenancy therein shall end next after the
expiration of half a year from the service of this notice.
And I do hereby demand possession thereof accordingly.
" * Dated the second day of November, one thousand
eight hundred and sixty-one.
"^ John William Bamsden.
"^To Joseph Thornton.'
" 54. The defendant Sir J. W. Bamsden has caused
similar notices to quit to be served upon various others
of the said tenant-right owners.
" 55. The defendant Sir J. W. Bamsden has caused
the before-mentioned notice to quit to be served upop
the plaintiff Thornton, in order that he may at the ex-
piration of the time fixed in such order commence an
action of ejectment, or some other action at law against
the plaintiffs, or one of them, in one of Her Majesty's
Courts of Common Law, in order to recover from the
plaintiffs the property mentioned in the said notice to
quit, such property being the before-mentioned property
of the plaintiff Thornton at Paddock, erected and laid
out by the last-named plaintiff under the circumstances
aforesaid, and to turn the plaintiffs out of the possession
of such property. And the defendant Sir J. W. Bams-
den threatens and intends, unless prevented from so
doing by the order and injunction of this honourable
Court, to commence and prosecute such action of eject-
ment, or some other action against the plaintiffs, or
one of them. And the plaintiffs are advised and submit
that the plaintiffs have not, nor has either of them, any
defence at law to such action, and that the last-named
defendant will if he proceed with such action succeed
therein, and will recover from the plaintiffs the said pro-
CASES IN CHANCERY.
549
pertj of the plaintiff Thornton at Paddock aforesaid, and
will turn the plaintiffs out of the possession thereof.
" 56. There are about 1700 persons, exclusive of money
and building clubs and other mortgagees, directly inte-
rested in the holdings of parts of the Ramsden estates on
the tenant-right tenure. There are many more holdings
on tenant-right tenure than 1700. The schedule to the
lastly before-stated Act makes the number of such hold-
ings to be 2000 or thereabouts, but there are many in-
stances in which many of the separate holdings are now
Tested in one person, or one set of persons.
'*57. The difficulties which have now been raised with
respect to the holdings of parts of the Ramsden estates on
the tenant-right tenure have not arisen in any manner,
neither have such difficulties been caused or created, by
the plaintiffs or the other tenant-right owners themselves.
The tenant-right owners have been and were (except in
those cases in which, as before stated, the tenant-right
owners received compensation for their respective pro-
perties), until the defendant Sir J. W. Ramsden thought
proper to question their rights, enjoying their various
holdings without interruption or question. They have
been and were duly paying the various fixed ground-rents
in respect of their several holdings, and disposing of their
respective properties as they thought fit and occasion re-
quired, and taking up their leases on the old-accustomed
and well-understood terms, namely for sixty years, re-
newable every twenty years whenever they thought fit
so to do. The interruption of the old-established system
has proceeded entirely and exclusively from the defendant
Sir J. W. Ramsden, and such interruption has already
considerably depreciated the value of the various before-
mentioned holdings on the tenant-right tenure.
^^ 58. The plaintiffs are advised and insist that under the
circumstances herein appearing the plaintiff Thornton
is entitled to have a lease granted to him of his said
VOL. IV. o o
1864.
Thohntost
V.
Ramsden.
Statement.
550
CASES IN CHANCERY.
1864.
Thornton
V,
Rambdbn.
Statement,
property at Paddock aforesaid for sixty years^ renew*
able every twenty years, at a ground-rent and fine to be
fixed according to the cnstom which has for many years
prevailed in exchanging the tenant-right tenure in divers
portions of the Kamsden estates into leasehold, or that, at
all events, if the plaintiff Thornton be not entitled to
such a lease, the plaintiffs cannot be turned out of or
otherwise in any manner disturbed in the possession of
the said property of the plaintiff Thornton without
being repaid the moneys expended by such plaintiff in
and about building and laying out such property, as a
compensation for such property, or as damages in respect
thereof; and that the defendant Sir J. W. Ramsden
ought to be restrained by the order and injunction of this
honourable Court from further proceeding upon the notice
to quit served upon the plaintiff Thornton as afore-
said, and from commencing or prosecuting any action of
ejectment, or other action or proceeding at law, to recover
possession of the said property of the plaintiff Thorn-
ton at Paddock as aforesaid, or any part thereof, or
which shall in any manner disturb, or tend to disturb, the
plaintiffs, or either of them, in the possession of the said
property, or any part thereof; and that the defendant
Sir J. W. Bamsden ought to be in like manner restrained
from in any manner disturbing the plaintiffs, or either of
them, in the possession of the said property of the plain-
tiff Joseph Thornton, or any part thereof.*
On behalf of the plaintiff there were upwards of eighty
affidavits, containing nearly 2000 folios, filed for the pur-
pose of showing the uniformity and universality of the
custom of what was described as the tenant-right tenure,
and stating numerous instances in which such tenure had
been recognised. The plaintiff's first affidavit, to a great
extent, was an echo of the bill. In the second batch of
affidavits the plaintiff and several witnesses deposed as
to the prevalence of the tenant-right tenure and the
CASES IN CHANCERY.
agency of Joseph Brook. The plaintiff deposed (paragraph
1) that he had ascertained that the number of buildings
under the tenant-right system subsequent to the Leasing
Act of 1844 amounted to 994. In the 6th paragraph of
this affidavit the plaintiff deposed " that in 1839 and 1840
Joseph Brook was the only known agent of the Bamsden
estates who resided near Huddersfield ; he followed no
other business, and he was authorised and allowed by
Sir J. Ramsden and the trustees to charge and receive
for his own use a fee on each allotment of land made by
him on the tenant-right system, and also a fee on each
transfer thereof* The plaintiff deposed that he paid
Joseph Brook for his trouble in setting out the plot of
land* In 1837 Mr. John Bower was the chief agent
for the Kamsden estates, residing at Byram, and who
attended the rent-audit meetings, and the said Joseph
Brook was the resident agent and the only known
resident agent during his time at Huddersfield. Joseph
Brook set out all plots to applicants for building
beyond the boundaries of the town proper, and also
many plots within the town, when the occupancy of
such plots did not interfere with any line of streets in
existence or projected. * * * In the former
class of cases Joseph Brook invariably fixed the rents
himself: in the latter class, as a rule, they were fixed by
the said Joseph Brook and the then acting surveyor in
consultation. And in every case, without an instance
being known to the contrary, the rents so fixed were the
rents paid; but in some few instances of the poorer
class of applicants for building the rents fixed or named
by Joseph Brook were afterwards lowered by himself
on the parties appealing to him personally as to the
amount of rent which he had named. Joseph Brook
was the landlord of the Star Inn, the business of which,
as an inn, was conducted by his wife and family, and
which inn was known and used as the Ramsden Estate
o o 2
551
1864.
Thorkton
V.
Ravbdbn.
Statement.
552
CASES IN CHANCERY.
1864.
Thornton
V.
Ram BO EN.
Statement,
Office nearly up to the time of Mr. Hathorn's appoint-
ment^ the tenants going thither for all purposes except
the rent and its arrears^ and new rents were generally
paid at the Star Inn, except such as the said Joseph
Brook collected. Joseph Brook's whole time^ as a
definite occupation, was engaged on the part of the
owners of the estate in the management of the land, the
keeping of the wood fences in repair, and the letting
and setting out of plots, and receiving new rents and
arrears, and other business of the said estate. Many
other witnesses deposed to the same effect. Joseph
Stocks, mason, and J. Sheppard, cordwainer (page 29),
gave the following account of the circumstances under
which they became tenants of the Kamsden estate, and
which was similar to that given by several witnesses: —
" About twenty-four years ago (from October, 1862),
having saved a little money and having entered into a
money club, I applied to Joseph Brook, Bridgend, to set
me out some land at Hebble Terrace aforesaid. Joseph
Brook said, ^ Hey wood,' the tenant of the land I intended
to take, ' is a queer chap ; you had better arrange with
him first.' Accordingly I paid Hey wood IZ. 10*. for
goodwill. Joseph Brook afterwards came and set out
the ground, and I paid his fee of 10^. after the building
was finished. Joseph Brook said that, inasmuch as I
and my neighbour John Sheppard had been at a great
deal of trouble with Hey wood, he would let us off paying
rent for two years. About three years after that I again
saw Mr. Brook. He said, ^ Joseph, I want some rent of
thee.' I said, ' Well, Mr. Brook, I am aware of that, and
I will come down to' the Star Inn and arrange with you.'
After that I met him at the Bamsden Arms Inn in
Huddersfield, and agreed with him for IZi 109. a year.
Mr. Brook then said, ^ Now, Joseph, you must attend
the George Inn once a year, and pay Mr. Bower every
April ;' and I have done so ever since.
Statements
CASES IN CHANCERY. 553
• " I had several conversations with Mr. Brook on the ^^W.
subject of a lease, and Mr. Brook invariably said I was Thorntoic
as safe as if my property was freehold, I expended ramsden.
3207. in building.''
John Sheppard also deposed to the same effect, and
that he had expended 4002. in building; that he had
several conversations with Mr. Brook on the subject of a
lease, and that Brook invariably said he was as safe as if
his property was freehold. Several witnesses also de-
posed that in 1852 Mr. Hathorn, the then agent, made
statements to the same effect. George Brook, farmer,
on this point deposed as follows (page 30) : —
" In the year 1852 I and my son went to Mr. Hathorn
to set me out the ground fit to build two other houses.
My son said in my presence to Mr. Hathorn, * Cannot
you let us have a lease for all the property?' Mr.
Hathorn replied, * You will be better without a lease
than with one, because a lease would cost a great deal of
money, and you will be as safe as if you had a lease.'
Mr. Hathorn further said, * You will never be disturbed ;
never you bother about leases.'"
Hepworth, Williams, Moore, Spencer, J. Brook, Kaye,
and others deposed to the same effect.
Aquila Gautrodger, another witness, deposed (page 34)
that he married the daughter of a tenant-right owner,
and in 1838 began to build; that he paid a fee; that in
1846 his father-in-law died ; that, by the instructions of
Mr. Hathorn, he paid his mother-in-law 40/. for goodwill
and 10/. proportion of ground-rent; and that soon after,
being thirteen years after he built, he was granted a
sixty years* lease, renewable every twenty years, dated
May, 1853; that no fine was charged, nor back rents
required.
As to the value of the property, subject to the present
ground-rent, Messrs. Hall and Thornton, of Huddersfield,
surveyors, deposed that the value of the house and
554 CASES IN CHANCERY.
1864. buildings (on the plot taken in 1837)^ subject to the
Thorhton ground-rent of 4Z., was . . . 1075 6 6
-. ^' Barn and Mistal, subject to the
Statement.
rent of 1/. 7rf., was worth • 116 5 0
£1191 11 6
There was also the evidence of an actuary, Jenkin
Jones, that the value of a ninety-nine years' lease of
premises of the annual value of 501, subject to a ground-
rent of 13/. 135. 5rf., was 518/. 7s., and the value of a
lease pf premises of the annual value of 9/., subject to a
ground-rent of 1/. 7d., was 113/. 14#.
There was also the evidence of Messrs. Thornton,
Eddison, and Bradley, that up to 1858 tenant-right pro-
perties would command customers at prices commensurate
with the bondjide value thereof; that since 1858, in
consequence of the stoppage of the ancient and accus-
tomed system of transfer, such property has become
greatly depreciated in value.
At page 13 of this batch of affidavits (24th October,
1862) forty-five witnesses, inhabitants of Huddersfield
and the neighbourhood, deposed that paragraphs 9 to 13
and paragraph 31 (inclusive) stated correctly the tenant-
right tenure established in Huddersfield. In page 16
other witnesses deposed to the same effect.
From the affidavits filed on the 7th December, 1863,
it appeared^ though the evidence was not uniform on the
question, that the rent payable on the lease being granted
of land previously taken upon the tenant-right tenure
was not more than double. The plaintiff" Thornton, in
paragraph 2, deposed that in 1853 he received intimation
that he must for the future pay his rent in two half*
yearly payments. J. Frost (page 14) deposed that Joseph
Brook told him that if he took a lease he should have to
pay more. James Brook and James Sheard (page 18)
CASES IN CHANCERY.
565
deposed that the understanding at Huddersfield was ''that
tenant«right holders were entitled to sixty years, renew-
able if they chose to require them^ but in such case the
rents would in general be higher, and they would have
to pay for the leases and for assignments and renewals ;"
that the understanding as to rent or increase of rent in
the case of a lease being taken has not been uniform.
In many instances the dnderstanding has been that the
parties could have a lease at the same rent, and that the
costs of the lease, assignments, and renewals was the
only burthen to be avoided. In another instance the
increase of rent has been held out and understood to be
as small as from l^d., for a superficial square yard, to 2d.
In no instance have we ever heard of the rent on lease
being held out to be more than double. Michael Mai-
linson (page 19) deposed it was not the general under-
standing that the tenant who held parts of the Bamsden
estate upon tenant-right tenure was liable to be required
to pay increased rents if the landlord for the time being
should think fit to demand such increase. W. Lidster
(page 32) deposed that in 1849 he obtained a sixty years'
renewable lease at 3^<f. per foot, dated 1st May, 1849,
to take effect from 1st April, 1847; that the circum-
stance of his obtaining it originated entirely with Mr.
Hathorn; that he neither expressed nor entertained
the desire for a lease; that ''as respects the increase
of ground-rent in the lease by the trustees referred
to in paragraph 3 of Hathorn's affidavit (filed the
25th July, 1862, page 52) I am unable to offer any
explanation other than that I did not enter into any
negotiation on the subject, nor did I ever pay any such
increased rcQt, nor was I aware that any increase of rent
had ever been charged. Such increase was entirely the
act of the agent of the trustees, and the only explanation
I can give is that such increase of rent must have been
inserted in the lease in order to increase the compensation
1864.
Statement.
656
CASES IN CHANCERY.
1864.
StaUment,
money for the freehold which would have to be paid by
the railway company to the trustees." Bernard Kyne
(page 42) deposed that ^^ persons about to build on the
said estate on the tenant-right tenure often inquired if
they would be safe without a lease^ and Joseph Brook's
invariable reply in my presence was ^ You are as safe
without a lease ; you will have to pay less rent ; and if at
any time you think proper to apply for a lease you can
have one, but you need never bother about a lease, for
you never will be disturbed.' " Harry Booth, solicitor,
deposed (page 49) that for a great number of years " the
tenant-right tenure has been generally preferred, owing,
as I believe, to the fact that the tenant-right rents were
generally lower, and were not subjected to the expense
of leases and of assignments, or mortgages thereof, or of
fines on renewal.*' This witness also deposed that the
taking the lease subsequently to the completion of ike
building was encouraged by the agents of the estate, and
never objected to, and at page 50 he deposed " that the
owners of leaseholds on the estates, according to my
knowledge and experience of the said system, were those
who had actually taken such leases as tenant-right owners,
who, though they possessed no other evidence of owner-
ship than being entered on the rent-books at Longley
Hall in the usual way under the system here, neverthe-
less were entitled to a lease if they chose to require it, and
on such terms in respect of rent as they could bargain for,
in cases where no leasing rent had been agreed to, and
which rent was invariably understood never to exceed
double the rent as tenant-right." John Spurr deposed
(page 52) " that it was part of the system that tenant-
right holders, or holders at will, as they have been
variously termed, might have, and I know that some of
them have had, sixty years' leases, renewable every twenty
years for ever, upon such terms, with regard to rent, as
they could bargain for with the agents of the estate, but
CASES IN CHANCERY.
557
it was generally understood that such rent would be
double the tenant-right rent unless the agents either
had agreed or would agree for a less rent." Frederick
Jones^ a member of a firm of solicitors formerly employed
by Sir J, Ramsden, deposed (page 53) as follows : — " The
system of tenant-right was shortly this — If land were
ofiered to a man for building at 2d. per yard tenant-right,
or 4d. on lease, and he took it as tenant-right, he could
not afterwards be forced to take a lease, but he had a
right to require one if he chose at any time afterwards.
The allegation that he must elect finally when he had
completed his building is a new suggestion. I never
heard of it until the aflSdavits were filed on behalf of the
defendant. After land had been so taken as tenant-right
the raising of the rent to lease-rent could not be forced
on the tenant. If a plot had been sold as tenant-right
by one person, and another person desired to hold that
plot as leasehold, the practice was for such other person,
or the agents for the estate, to negotiate with the holder
of the tenant-right for the purchase of his buildings, and
after such holder was compensated, then the new or lease
tenant was let into possession of the plot at such increased
rent as he might have bargained for." The witness
mentioned several instances, and (page 54) he deposed:
" It was generally understood that such rent would be
double the tenant-right unless the agents had agreed or
would agree for a less rent." In an afiidavit by sixteen
solicitors of the neighbourhood of Huddersfield (page 60)
there was this statement: "It was generally understood
that the amount of rent at lease would not be more than
double the amount of rent at will, according to the best of
our remembrance, experience, and belief, acquired as afore-
said." William Dransfield, solicitor, deposed (page 61)
"that it was generally understood that the amount of rent
at lease would not be more than double the amount of rent
at will." Thirteen solicitors or solicitors' clerks (page
1864.
Tbormton
V.
R4M8DSN.
Statement.
558
CASES IN CHANCERY.
1864.
Thorhton
V.
Rambden.
Statement,
61) deposed to the same effect. At page 64 fourteen
solicitors or solicitors' clerks deposed " that it was
generally understood that the amount of rent at lease
would not be more than double the rent at will." Wil-
liam Dale (page 81) deposed that the agent told witness
if he would have a lease he would have double rent to
pay.
The answer of Sir John W. Bamsden to the original
bill filed on the 6th June, I8629 stated, inter alia^ in para-
graph 9, that previously to the year 1816 Sir John
Ramsden made 227 leases of hereditaments in the town-
ship of Huddersfield, and no more : one was a mining
lease, and two leases of ground only without covenants
to build, eighty-six of the leases with buildings thereon,
but without covenants to build, on two of which were
agreements by the lessees to build endorsed, and one of
which had a provision for surrender. The remaining
138 were building leases. Of the 227 leases^ the mining
lease was for seven years, not renewable, at a fixed rent ;
of the ground leases, one was for sixty years^ not renew-
able, at a 21. rent, the other for twenty-one years, not
renewable, at 602. One of the building leases was for
forty years, not renewable, at the rent of 1/. The remain-
ing 223 leases were for sixty years at various rents. • •
• • •In each of these 223 leases was a covenant
on the part of Sir John Ramsden for renewal thereof at
the end of the first twenty years on request or notice given
within a stipulated time thereafter, or if not renewed at
the end of the first twenty years, then at the end of the
first forty years on request or notice given within a stipu-
lated time thereafter, and in each case on the following
payments: — Of these 223 leases (renewable leases) seven-
teen are renewable of one year's fiill value if renewed at
the expiration of the first twenty years, and of ten years'
full value if renewed at the expiration of the first forty
years. The remaining 206 are renewable in 175 cases of
StateiMnt.
CASES IN CHANCERY. 559
two years' rent if renewed at the expiration of the first 1864.
twenty years, and of ten years' rent if renewed at the end thorhton
of the first forty years, and in the remaining thirty-one ium sdbn.
cases on payment of certain fixed sums without reference
to rent.
In paragraph 11 the defendant alleged that after the year
1816 Sir J. Ramsden made sixty-nine leases of such heredi-
taments for sixty years, three of which were not renewable.
In each of the sixty-six was a coyenant by Sir J. Ramsden
for renewal at the expiration of the first twenty years, on
request or notice given within a stipulated time thereafter,
or if not renewed at the end of the first twenty years,
then at the end of the first forty years on request or notice
within a stipulated time thereafter. Of these sixty-six
leases thirty-four are renewable on payment of fines, to be
ascertained or calculated with reference to the improved
value of the premises. The fines payable for the renewal
of twenty-three of the remaining thirty-two leases are
two years' rent for renewal at the expiration of the first
twenty years, and ten years' rent for renewal at the expira-
tion of the first forty years, and in the remaining nine
leases on payment of certain fixed moneys without reference
to the rent. In the 14th paragraph the defendant alleged
that no agreements in writing were after the year 1816
entered into by Sir John Ramsden^ or his agents, but that
the ground was marked out by the steward or agents, that
the applicants were permitted to take possession on the
understanding that after the erection of buildings to the
satisfaction of the steward leases were granted in the
form prescribed by the Act of the 7 & 8 Vic. The answer
alleged that there must have been a distinct agreement as
to the mode in which the fine should be ascertained.
The 19th and following paragraphs of the answer raised
the defence mainly relied on, viz., that there were two
systems of dealing, one in which the tenant builtvdthouta
lease on expectation of a lease at a low rent, and the other
560
CASES IN CHANCERY.
1664.
Thorntow
V.
Ramsden.
statement.
in which he took a lease at a higher rent. The allegation
was as follows : —
Paragraph 19. "I deny, to the best of my knowledge,
information, and belief, that the so-called tenant-right
tenure with respect to the Ramsden estates was such as
in the bill mentioned, or otherwise than as herein appears. I
believe that a person desirous of erecting a house or other
building applied to Mr. Joseph Brook, but not otherwise
to the agent of the Ramsden estates^ for a piece of ground
such as such person required for his building, and that the
piece of land was then staked out, and the proposed tenant
was allowed to take possession thereof, subject to the approval
of the agent, but that the same was not otherwise allotted
or made over to such person by the agent or any other
person, and that the said Mr. Brook fixed, subject to the
approval of the agent, the annual rent to be paid for the
piece of land, and that such person then took possession
thereof and erected his house or other building thereon ;
but I deny, to the best of my knowledge, information, and
belief, that this took place upon the understanding or
agreement between himself and such agent that he should
have a lease from the ground landlord of a piece of ground
for sixty years, renewable every twenty years, whenever
such person might think fit to require such lease, or that
such person should never be disturbed in his possession.
I believe that it was distinctly understood that no lease
would be granted, and in consideration of the rent being
very much lower than the rent for other land to be taken
on a building lease, and of saving the renewal fines, and
avoiding the expenses of a lease, many persons preferred
to build without having a lease or an agreement for a
lease, and took the land subject to the risk of being dis-
turbed in their possession, with the full knowledge that
they were liable to be so disturbed."
In the latter part of paragraph 20 the defendant Sir J.
VV, Ramsden said, *^ I believe that persons who took land
CASES Ix\ CHANCERY.
561
upon the so-called tenant-right tenure, for the purpose
of erecting houses or buildings thereon, were not entitled
to require leases, and did not contemplate that such
leases should be granted, the truth being that by the
so-called tenant-right tenure, while on the one hand
the tenant paid a less rent and saved the expense and
obligations of a lease and the payment of a renewal
fine, on the other hand he became subject, as he well
knew, to the risk of being disturbed in his possession
if the landlord should think it expedient to disturb him."
In paragraph 26 he denied positively for himself, and
to the best of his belief, as to the acts of the trustee and
others^ that the said Sir J. Ramsden, or his agents,
induced the inhabitants of Huddersfield to acquire land,
in order to encourage persons to erect buildings on
the Ramsden estate on the tenant-right tenure, or that
they did during his minority, or that he himself did subse-
quently, encourage and foster the understanding and
belief that persons taking a piece of land, part of the
Ramsden estate, for building purposes could have leases
of such pieces of land for sixty years, renewable every
twenty years, whenever they might require such leases, or
that they never would be disturbed in their possession, or
an understanding or belief to any such or the like effect*
In paragraph 32 he denied that Joseph Brook was in any
respect the duly authorised agent of the Ramsden estates^
but alleged that Mr. Bower was such agent. In the 53rd
paragraph the defendant mentioned several instances where
tenant-right tenants had their rent raised nearly threefold.
In paragraph 54(a) he alleged that he believed there was
not one case in which a plot of land taken in the lifetime of
Sir J. Ramsden upon the tenant-right tenure was afterwards
leased with the buildings thereon for sixty years, renewable
every twenty years ; that in every case in which a lease
was granted to any tenant who had erected buildings on
the Ramsden estate, the same was granted in pursuance
1864.
Thornton
V.
Rambdbn.
statement.
562
CASES IN CHANCERY.
1864.
Statement,
of an express contract or promise to that efiect, and at
a higher rent, and other more onerous terms, than were
required from those who took the land on what was called
the tenant-right tenure; that during the defendant's
minority there were comparatively few cases in which
such tenures were convertible into leaseholds ; and that all
the leases so granted, except perhaps one or two which
might have been granted inadvertently, were granted
under special circumstances, or subject to special condi-
tions. Since defendant had attained his majority there
had been but three such cases.
The answer then set forth the various applications made
by the plainti£F Thornton, in some of which he professed
to be tenant at will in respect of the properties held
by him. In the II 7th paragraph the answer referred
to the case of Frederick Swift, one of the tenants on
the tenant-right tenure, who was ejected by means of an
action in ejectment brought against him by Sir J. W.
Ramsden, and tried at the Assizes, in March, 1858, at
York, on which occasion the verdict passed was for the
lessor.
On behalf of the defendants an immense mass of
evidence was adduced for the purpose of showing that the
custom on the estate was not uniform, but that for the
most part special bargains were entered into in each case.
Evidence also was adduced for the purpose of showing
that there were two modes generally adopted in the creation
of tenures on the estate— viz., one in which the tenant was
allowed to erect buildings on a plot of land previously
marked out, at a very low rent, without the expense or
obligations of a lease, but being a mere tenant at will,
and liable to be ejected at the will of the landlord;
secondly, that in which the house was erected on the
understanding that a lease should be granted on completion,
in which case the rents were much higher, and the tenant
was bound in the ordinary way.
CASES 15 CHANCERY. 563
NameroDS instances, supposed to illustrate the above 1864.
distinctions, were adduced. Thornton
The answer also claimed the benefit of the Statute of B^^g^BN.
Fraud and the Statute of Limitations.
Mr. MalinSi Mr. Daniel, and Mr. JP. Nalder for. the Argument.
plainti£P.*
The evidence had clearly established that the plaintiff
Thornton and the other tenant-right tenants had been
induced to expend their money in building on the estate
on the distinct and uniform representation that they would
never be disturbed, and might, whenever they required it,
have a lease for sixty years, renewable for ever, on the
customary terms. If this was the result of the evidence, and
it could not be disputed, the plaintiffs were entitled to the
interference of this Court, either by a decree for a lease
or for compensation. This was clear on all the authorities.
One of the earliest cases laying down the principle on
which this Court acts was the Earl of Oxford's case (a), which
in the material facts very much resembled the present one.
There the Earl of Oxford and the assignor having erected
130 houses, the college obtained judgment at law on the
ground that the conveyance to the Queen by the college
under the Statute 13 Eliz. was void, upon which Lord
Oxford filed his bill in chancery and obtained an injunction.
Lord-Chancellor EUesmere in giving judgment said : —
" 1. The law of God speaks for the plaintiff (Deut.
xxviii. V. 3).
'* 2. And equity and good conscience speak wholly for
him.
*' 3. Nor does the law speak against him ; but that and
equity ought to join hand in hand in moderating all ex-
tremities and hardships. • • When a judgment
* The arguments in this case are unavoidably abridged,
(a) 1 Chan. Rep. 1 ; 8.8. Leading Cases in £qmty, v. 2, 504.
564
CASES IN CHANCERY.
1B64.
Thorntoit
o.
RAMSDBir.
Arguments
b obtained by oppression, wrong, and a hard conscience
the Chancellor will prostrate and set it aside, not for any
error or defect in the judgment^ but for the hard conscience
of the party. ^^
In the East India Company v. Vincent(a) Lord Hardwicke
says, '^ There are several instances where a man has
suffered another to go on with building on his ground and
not set up a right till afterwards^ when he was all the time
cognisant of his right, and the person building had no
notice of the other's right, in which the Court would
oblige the owner of the ground to permit the person
building to enjoy it quietly and without disturbance." In
that case the owner merely stood by; in this case he
encouraged the tenant by a distinct representation. In
Stiks V. Cooper (i), where the landlord, being remainder
man in tail, allowed the lessee under an imperfect lease(c)
to build, and received rent, but afterwards brought eject-
ment, the Court directed him to execute a valid lease.
Lord Hardwicke in that case said, '' Where the remainder
man lies by and suffers the lessee or assignee to rebuild, and
does not deny notice, all these circumstances together will
bind him from controverting the lease afterwards." In
fact, all the cases went ftirther than the Court was asked to
do here. In Dann v. Spurrier (d) Lord Eldon says, " I
fully subscribe to the doctrine that this Court will not
permit a man knowingly, though but passively, to encourage
another to lay out money under an erroneous opinion of
title." In Chregory v. Mighell(fi), where there was an
agreement for a lease, and the tenant entered without
express permission, and expended money, the Court decreed
specific performance of the agreement. In the present
case both the possession and the expenditure were in the
(a) 2 Atkin, 82. (b) 3 Atkin, 692.
{e) The lease appears not to have been pursuant to the powen
contained in the private act.
(d) 7 Ve8. 230, (e) 18 Vea. 3;>8.
CASE8 IN CHANCERY.
565
contemplation of the lessor and his agents. SMllibeer v.
Jarvis (a) was almost to the same effect. Pain v.
Coombs (i), Surcome v- Pinniger (c), Powell v. Love^
grove (rf), and Farrall v. Davenport {e) were also cited.
Shannon v. Bradstreet (/), Williams v. 2%« J?ar/ of
Jersey (jr), and Dann v. Spurrier (A) were cited on this
point and on the question of acquiescence. On the question
of compensation the learned counsel contended that the
plaintiff was clearly entitled to compensation. In JEdlin
V. Battaly (i) the Court adjudged that where a man igno '"
rant of an old title built on the land and was ejected he
should hold the land until he was repaid his charges in
building.
In the Unity Joint^Stock Mutual Banking Association
V. jffin^Cfe), where a father, intending to make over certain
land at a future time to his sons^ but^ having never pro-
mised or bound himself to do so, allowed them to build
thereon, it was held that the sons had a lien for their expen-
diture on the premises. See also the Watercourse case,
Short V. Taylor (l) ; and Peterson v. Hickman{m) was also
an authority to the same effect.
It was submitted, therefore, that, both as to the land
taken in 1837 and 1845, the plaintiffs were entitled to
specific performance of the agreement that they were to
have a lease, or at all events to compensation.
It was suggested in the answer that the written docu-
ments described the plaintiffs as tenants at will, but it was
shown by the evidence that these documents, which were
1864.
ArgunwHi,
(a) 8 De G. M. &. G. 79.
(b) 1 DeG. &J.34; s.c.
& G. 449.
(c) 3 De G. M. & G. 671.
(rf) 8 De G. M. & G. 357.
(e) 3 Giff. 363.
(/) ISch. &L.62.
Of) Or. & P. 91.
(A) 7 Ves. 230.
VOL. IV.
(t) 2 Lev. 152.
3 8. (k) 25 Beav.72.
(I) Eq. Gas. abridged, part 2,
page 622, pi. 3.
(fit) Cited in Tudor's Leading
CaBea, v. 2, p. 519; and in Be*
port8 in Chancery, part 1, p. 3,
but no reference is given to the
report.
P P
566
CASES IN CHANCERY.
1864.
Thornton
V.
Ramsdbn.
Argument,
prepared by the defendants, were inconsistent with the real
understanding between the parties, and had not in fact
been acted on by the defendants. The plaintifi& signed
them without having their attention called to the terms of
the documents. They were not^ therefore, binding on the
plaintifis.
The Attorney" General^ Mr. Bacon^ and Mr. Chapman
Barber for the defendants.
The evidence showed that there were two classes of
tenants on the estate — one who were mere tenants at will,
who built on the land on the distinct understanding that
there was to be no lease, that they were to be spared
the expense and obligations of leases, and to enjoy their
buildings at a very low, in some cases almost a nominal,
rent, but were, on the other hand, liable to be disturbed
by their landlord if he should think fit so to do, though
with a belief, from the character of the Ramsden family,
that they would not be treated harshly. The other class
were tenants who stipulated for leases, with all their ex-
penses and obligations, and at higher rents. The plain-
tifis' case had been sought to be sustained by applying the
evidence relating to one class in support of the other.
. The Act of 1844 was confined to cases where there had
been a distinct stipulation for a lease. The Act of 1859
was designed to apply to those cases in which there had
been no previous stipulation for a lease, but where per-
sons wished to build at a specified rent. It was clear that
neither Act applied to the case of tenants at will at a fixed
rent.
The evidence showed that there had been no uniform
system on the Ramsden estate, but that each case depended
on the special agreement entered into. The plaintifi^s story
was, to say the least of it, improbable. He contended that
the landlord, by his agents, had entered into a contract that
was wholly one-sided. He was to have a lease if he
CASES IN CHANCERY.
567
pleased, but the landlord could not compel him to take one.
The plaintiff if the holding deteriorated in yalue might
relinquish it, but the landlord could derive no benefit from
any improvement in the land. Such a doctrine was quite
inconsistent with the principle acted on by this Court.
Cases had been cited where this Court relieved against
bad faith where the landowner induced others to expend
their money on the faith of some promise held out to them,
which he afterwards violated. All the cases cited on
behalf of the plaintiff were of that kind, but that was not
this case. The case nearest to this in fact and principle
was that of Pilling v. Armitage (a), where Sir William
Grant distinguished between those cases where there had
been an implied contract or understanding between the
landlord and tenant, on the faith of which the tenant ex-
pended money, and those cases where the tenant^ with full
knowledge of his title, expended money on the property at
his own risk. In Dann v. Spurrier (b) Lord Eldon laid
down the same principle^ and pointed out that the cases of
expenditure on the fSEiith of representations by the^ landlord
had nothing common with those cases where a tenant at
will, acquainted With his position, laid out money on the land
without any contract between the landlord and tenant with
reference to such expenditure.
In this case the plaintiff's own evidence showed that the
only right, if any, which the so-called tenant-right holders
had to a lease was a lease on terms not fixed by the original
contract, but to be agreed on. It was admitted, for ex-
ample, that the rent, a most material consideration in
any lease, was to be increased.
The plaintiffs relied on the cases in which compensation
was paid to the tenant for land required to be taken ; but
in all these cases it was proved that the tenant had no
claim as of right to the compensation, but received it only
by virtue of the landlord's permission.
(a) 12 Vee. 78 ; b.c. 2 Leading Caa. Eq. 620. (b) 7 Vea. 230—235.
P P 2
1864.
Argument,
568
CASES IN CHANCERY.
1864.
Thornton
V.
Ramsdbn.
Argument.
Then it was said that even if there were no contract by
the landlord to grant leases on the terms mentioned in the
will, still, the tenants having expended their money on the
fidth of representations made by the agents, the landlord
was bound ; but in Pilling v. Armitage there were the same
kinds of representations, but it was held by Sir W. Grant
in that case that they did not constitute any contract
between the landowner and the tenant. But further. Brook
was not the agent of the landlord, but was merely a person
employed by the agent Bower, without authority to make
any representation or enter into any agreement sufficient
to bind the landlord, unless his acts were ratified by Bower
(which they never were), to whom alone the landlord had
given authority to enter into any contract on his behalf.
On the whole of the evidence the plaintiffs' case failed.
It was incumbent on them to prove the alleged custom on
the estate, and they had been unable to adduce a single
instance in which a fine had been paid on the renewal of
a single lease of the kind claimed by this bill. They had
failed to show with sufficient precision what were the terms
or what was the rent comprised in the lease to which they
claimed to be entitled. They had failed to show any con-
tract such as was alleged by the bill between Thornton
and his landlord, and it was submitted the bill must be
dismissed with costs. The following cases were also cited: —
Clayton v. Blakey (a) was cited as to a yearly tenancy,
Blore V. Sutton (i), Morgan v. Milman (c), Allan v.
Bower (d), and Boardman v. Mostyn («).
Mr. Molina was not called on to reply : His Honour
stating that if he thought it necessary he would hereafter
hear the reply.
(a) 8 T. R. 3. (rf) 3 B. C. C. 149.
(h) 3 Merivale, 237. \e) 6 Vee. 467.
((?) 10 Hare, 279 ; s.c. 3 De G. M. & G. 24.
CASES IN CHANCERY.
569
The Vice-Chancellor : —
The large town of Huddersfield is for the most part
bailt upon land of which the late Sir John Ramsden was
tenant in fee simple. From the year 1816 and up to the
time of his death there was an extraordinary system or
manner of dealing with his land in the township of Hud-
dersfield for the purpose of building. No agreement in
writing was entered into with persons desirous of taking
land for the purpose of building, nor were leases granted
to such persons before the erection by them of the houses
or buildings on the land. All that was done was that the
person desirous of taking the land for the purpose of
building made application to Sir John Ramsden's steward
or agent, who fixed a ground-rent proportioned to the super-
ficial measurement, and thereupon the person was let into
possession, upon the understanding or agreement that after
the erection of buildings to the satisfaction of the steward
or agent a lease would be granted according to the usual
from of building leases on the estate.
In the year 1837 the plaintiff Thornton applied in
this manner for the first piece of land in question in
this cause for the purpose of building a dwellinghouse
upon it and laying out a garden and pleasure ground.
His application was communicated by the agent to the
steward, and the steward, upon inspection^ approved
of the plan, had the ground staked out and measured,
and a ground-rent fixed. The plaintiff Thornton was
thereupon let into possession^ and proceeded to erect the
proposed dwellinghouse, and has expended thereon the
sum of 1850^ He has ever since continued in the pos-
session and enjoyment of the land and building thus erected
by him, duly paying the ground-rent.
Sir John Ramsden died in the year 1839. Under his
will Sir John William Ramsden^ one of the defendants in
this cause, is tenant for life of the land in question. The
will contains a power of granting building leases, not only
1804.
May S5.
Tbornton
Ramsdbn.
Judgtnent,
570
CASES IN CHANCERY.
1864.
Thobmton
Ramsden.
JudgmenU
for the ordinary term of ninety-nine years, bat also in
these words — *' Or upon sach and the same or the like
terms as those upon which leases already granted by the
testator of parts of the estate had then been granted, and
to renew any existing leases upon the then present system.'*
This power of granting building leases was exercisable by
the tenant for life, or^ if not of full age, by his guardians.
In the year 1845 the plaintiff Thornton, during the
minority of the present tenant for life, applied to the
guardians for and obtained an additional piece of ground,
adjoining ^hat of which he was in possession, for the
purpose of erecting some additional buUdings. As to this,
also, his plan was approved, the ground measured, a ground-
rent fixed, and he was let into possession, and expended a
considerable sum of money in the erection of additional
buildings.
It appears that many other persons haye erected build-
ings in the township of Huddersfield under similar circum-
stances. Disputes haye arisen as to the right of the
plaintiff Thornton and those other persons to haye leases
granted to them; and after much negotiation, and the
rejection of the terms offered, the defendant Sir John
William Ramsden, now tenant for life in possession, con-
sidering that his offers were reasonable, and that they
were unjustifiably rejected, has resolved to submit the
question for decision by the proper tribunal.
For this purpose he has served a notice to quit, for the
avowed purpose of bringing an action of ejectment against
the plaintiff Thornton. The present suit is instituted to
restrain the proceedings in ejectment, and the bill prays
a declaration of his right to have a lease granted to him,
or, in the alternative, for repayment of the moneys ex-
pended in erecting the buildings, and a lien on the property
until he is compensated.
By his answer, the defendant Sir John William Ramsden
says he is advised that the plaintiff Thornton was originally,
CASES IN CHANCERY.
571
legally, and equitably only a tenant at will, or from year
to year. He denies that the plaintiff Thornton has any
legal or equitable right to the property. Moreover, he
states expressly that he intends, unless prevented by the
Court, to commence and prosecute the action, and, if he
should be so advised, to turn the plaintiff out of possession
of the property.
This Court has gone very far in many cases to protect
the possession of a tenant who has in good faith expended
money on land in a reasonable confidence that his posses-
sion would not be disturbed.
Where land is let and taken for the sole purpose of
building, the tenancy at a fixed rent being created, but the
term of years not fixed, this Court never would presume
that the landlord had a right to take the immediate posses-
sion and enjoyment of the building, without any compensa-
tion, as soon as the tenant had expended his money upon
it. Unless on the clearest evidence of an express contract
that the landlord should have that right, it probably would
not be recognised.
In the present case there is sufficient evidence of an
understanding or agreement that the possession of the
tenant should not be disturbed. It is distinctly sworn by
the plaintiff that when Joseph Brook, the agent of Sir
John Ramsden, came to inspect the buildings, and when
the plaintiff talked about a lease, Brook stated that it
would be folly for him to have a lease when " he was
equally safe and secure without a lease as with one, and
that he could get a lease whenever he wanted one."
This Brook is the same person who was examined before
the committee of the House of Lords to prove the
preamble of the Act of 1844 as to the usage on the estate
as to letting land for building without granting leases.
This Act of 1844 greatly removes the difficulties in the
plaintifis' case. It recites that by reason and on the faith
of the uniformity of the system, and the fulfilment by Sir
1A64.
Judgment.
672
CASES IN CHANCERY.
1804.
Thornton
Ramsdbn.
Judgment,
John Ramsden of the expectations or promises raised
or given by his steward or agent, many persons were
indaced to erect houses or buildings without written agree-
ments, and without specification of, or reference to, the
terms or conditions of such leases, except, as before men-
tioned, on the faith of leases being granted according to
the system aforesaid. There is also a recital of the di£B-
culties which had arisen as to the powers to grant leases
to persons who had applied for and taken land, and erected
buildings thereon, on the faith of leases being granted to
them according to the system before mentioned, and that
it would be greatly for the benefit of the persons interested
under the limitations in Sir John Ramsden's will if power
were given to grant leases to persons who had taken land
and erected buildings on the faith of the system.
The Act accordingly gives power to the guardians of the
present baronet during his minority, and to himself on his
attaining twenty-one, to grant to such persons leases
according to the form prescribed by the Act.
A great mass of evidence has been given in this cause
as to the way in which various tenants on the estate were
dealt with. It has been argued that the plaintiff Thornton
is one of a large class of tenants who took only as tenants
at will, and were entered on the book as tenants at will,
and that the other class entitled to leases were so entered
in the rental books. But, upon the result of the evi-
dence it is clear that the words 'tenant at will" were
used merely to distinguish the more numerous class who
had not actually obtained their leases. Alexander Ha-
thorn, who acted as resident agent on the estate during the
minority of the present tenant for life, states that the
persons who took lands and erected buildings without any
lease generally hoped and expected that they would not be
disturbed.
There seems to be no doubt that the agents of Sir John
llainsden, and of the guardians during the minority of the
Judgment,
CASES IN CHANCERY. 673
present tenant for life^ systematically disconraged the 1B64.
applications for leases after buildings were erected* by thorntoit
representations that the rent would be doubled, and that r^jj^'dbk
the lease would be expensive.
The evidence affords only two instances' in which, when
a lease was granted to a person who had held for several
years as tenant at will, the rent reserved by the lease was
not increased. Whatever diflSculty may be occasioned by
the evidence that the rent was increased when the lease
was granted, the Act of Parliament of 1844 certainly in-
tended to obviate this di£Eiculty, for the preamble expressly
refers to the cases of no written agreement and no specifi-
cation of the terms and conditions of the lease as cases to
come within the benefit of the Act.
It seems clearly enough established, on the result of the
evidence, that the usual course in granting leases was that
the rent should be doubled. One witness (William Moore)
says that Brook, the agent, used to say that the rent would
be three times less if the land were taken without lease ;
but this is not consistent with the great body of evidence,
and if the plaintiff is entitled to have a lease under the Act
of 1844, the rent to be reserved upon it ought, according
to the evidence^ to be double the amount which he has
hitherto paid.
As to the argument founded on the terms of his appli-
cation in 1845 for the additional piece of ground, it seems
to me to have no just foundation. The words of that
application were dictated by the agents of the guardians,
and were wholly unwarranted by the leasing powers of
the will, or by the Act of Parliament. There seems
nothing to justify them in granting a building lease, at
will or from year to year, without any covenants to protect
the inheritance. And upon the evidence of the trans-
action in 1845 it must be taken that it was on the same
footing as the original tenancy created in 1837.
Whatever the rights of the plaintiff are, there seems no
574
CASES IN CHANCERY.
1864.
Judgment,
ground for holding that they are affected by the evidence
as to the mode of dealing with some particular tenants.
His case is the same with that of the great body of tenants
described in the Act of 1844, who haye built without
having leases^ without any written agreement for a lease^
without the specification of the terms or conditions of the
lease according to the system recited in that Act of Par-
liament.
As to the Act of 1859^ as its provisions are not com-
pulsory^ and as all the negotiations with the plaintiff under
it entirely failed, it seems to have no material bearing on
the real question in this cause, and is only part of the
history of the unfortunate attempt of the present tenant
for life and his agent to settle the existing disputes.
Great stress was laid by the defendants' counsel on
the case of Pilling v. Armitage (a), which they insist is
exactly applicable to the present case.
As the sole purpose and object of the creation of the
plaintiff's tenancy under Sir John Ramsden was the expen-
diture of money on buildings and it is the case of a building
lease, the grounds of the decision in Pilling v. Armitage
are entirely wide of the present question. The reasoning
of Sir W. Grant is clear and convincing. He says (p. 84),
'^ If you disconnect the improvements from any specific
engagement upon the faith of which they were made^ it is
very difiicult to give the plaintiffs the benefit of these im-
provements." Here there is the converse case. Here the
engagement to create a tenancy was for the express purpose
of the expenditure in building.
Indeed, in the last paragraph of his judgment Sir W.
Grant puts the case of a landlord who enters into an agree-
ment relative to improvements, and who advances part of
the money, implying, and only implying, that the other
part is to be advanced by the tenant. Even in such a case
he says he doubts whether that does not fasten an equity
(a) 12 Ve*'. 78.
CASES IN CHANCERY.
575
upon the landlord, precluding him, when these improve-
ments are made under his authority, from saying there is
an end of the lease. How much stronger is the case
against a landlord who lets the land for the express purpose
that the tenant may expend money in building upon it !
A great part of the argument on behalf of the defendants
was applicable only to a case of specific performance.
This is not a case of specific performance, and the bill does
not pray relief on that footing. If it came within that
doctrine there would have been force in the argument,
founded on the evidence, that where leases are granted
to tenants in the same situation with the plaintiff^ the rent
reserved by the lease was always higher than that on which
the ground was originally taken^ and which had been paid
during the tenancy after the erection of buildings. Rent
is a material part of the contract for a lease. Where the
amount of rent reserved by the lease is difierent from that
which had been reserved and paid on the original tenancy
it is fair to argue that there must be a new contract.
But, inasmuch as this case stands on an equity much
higher and more positive than the discretionary and
ordinary equitable jurisdiction for specific performance,
the argument founded on the difierence of rent loses all
its force. It has been shown by the evidence that the
transactions with the plaintifi^in 1837 and 1845 were the
creation of a tenancy for the purpose of building according
to the mode of dealing recited in the Act of 1 844. The
plaintifis are entitled, I think, to have a lease granted accord-
ing to the form prescribed by that Act, and the rent to be
received in the lease must^ according to what was usual on
the estate, be double the amount hitherto paid. The right
to the alternative relief prayed in the shape of compensa-
tion has not been discussed, fioth plaintiffs and defendants
seem to prefer a lease if the decree is to be in the plaintifiP's
favour. Therefore, there must be a decree to that eflect
and the plaintiff is entitled to the costs of the suit.
1864.
Thorhtoit
V,
Ramsobv.
JudffiH«ni»
576
1864.
Thornton
V,
Rambdbn.
Judgment,
CASES IN CHANCERY.
The Attorney-General — It would be well to know
whether the rent payable under the lease is to be a rent
running back from the years 1837 and 1845 respectively,
or to commence only from the present time, and what fine
is to be payable at the end of forty years^ for no fine has
been paid at the expiration of twenty years from 1837.
The Vice-Chancellob. — The double rent will only
be payable from the date of the lease, up to which time
the old rent only will be payable. With regard to the
fine, that will be a matter for consideration in chambers
when the lease comes to be settled.
CASES IN CHANCERY. 577
1864.
Feb, 29 to
May 7,
daring 33
days. —
YOUNG t;. FERNIE. Judgment
T May 26.
HIS bill was filed by the plaiutifis, manufactoring inventions in
chemists^ for the purpose of obtaining an injunction to ™^^j^^^ ^^
restrain the defendants, during the continuance of the diflferent from
inventions in
letters patent dated the 17th October, 1850, from manu- economical
fieicturing, selling, or exposing for sale any paraffine oil, the Uiwsan?
oil containing parafl&ne, or paraffine made according to the 2^anr*i°^
invention or. specification of the plaintiff James Young, or powers differ
in the manufacture or production of which any part of of chemical
the said invention is used, and firom in any manner in- ^"resliits^of
fringing the rights and privileges granted by the said analysis in the
patent. infant science
The bill also prayed for an account and the consequent with fts
relief. «T^^'^.
field of undis-
The bill stated that by letters patent dated the I7th covered laws
October, 1850, Her Majesty granted to James Young the stances.
exclusive right for England and the colonies to use his fore^^rior^"
invention of " Improvements in the treatment of certain J**® ****« ^^ *"
* inventor's
bituminous mineral substances and matters, or products patent some-
therefi-om," for the term of fourteen years from the date ne'^ssary for
thereof, with a proviso in the ordinary form that within six ™J|ca^n f
months the specification should be filed. a chemical
The specification described the process as follows: — manufac-
*'My said invention consists in treating bituminous pu^oses
coals in such manner as to obtain therefirom an oil con- f«™ained to
be discovered,
taining paraffine (which I call paraffine oil), and firom which the
which oil I obtain paraffine. The coals which I deem to invention^
be best fitted for this purpose are such as are usually called ^g£j'^^
the manufac-
ture, with the materials and process in the specification, was a ** new manofacture not in
use " at the date of the patent.
The law recognises the right of an inventor who finds out and supplies for commercial
purposes an article known previously only as a chemical curiosity.
This Court looks with distrust on experiments conducted with a view to litigation.
Statement,
578 CASES IN CHANCERY.
1864. parrot coal, cannel coal, and gas coal, and which are much
YouNo used in the manufacture of gas for the purpose of illnmi-
Fbrnib. nation, because they yield upon distillation at a high
temperature olefiant and other highly illuminating gases
in considerable quantity ; and although some coals last
described contain a large amount of earthy matters, those
matters do not interfere materially with the performance
of my process. To obtain paraffine oil from coals I pro-
ceed as follows : — The coals are to be broken into small
pieces of about the size of a hen's egg, or less, for the
purpose of facilitating the operation* The coal is then to
be put into a common gas retort, to which is .attached a
worm-pipe, passing through a refrigerator, and kept at a
temperature of about 55^ of Fahrenheit's thermometer by
a stream of cold water. The temperature of the refrige-
rator should not be made too low, lest the product of the
distillation should congeal and stop up the pipe, and I find
that a temperature of about 55^ Fahrenheit is sufficient
The retort, being closed in the usual manner, is then to be
gradually heated up to a low red heat, at which it is to be
kept until volatile products cease to come off. Care must
be taken to keep the temperature of the retort from rising
above that of a low red heat^ so as to prevent as much as
possible the desired products of the process being con-
verted into permanent gas. The coke or residue may
then be withdrawn from the retort, which, being allowed
to cool down below a visible red heat (to prevent waste of
the fresh material to be introduced), may be again charged
with a quantity of coals, to be treated in like manner as I
have described. The crude paraffine oil distilled or driven
off from the coals as a vapour will be condensed into a
liquid in passing through the cold worm-pipe, from which
it will fall into a vessel which must be provided to receive
it. Instead of obtaining the whole of the paraffine oil by
diitillation or driving off, as just described, a portion of it
may in some cases, if thought desirable, be run from the
Statement*
CASES IN CHANCERY. 679
retort through an opening and a pipe to be provided in i^^-
the anterior and lower part of the retort for that purpose youno
after it has separated from the coal and assamed a liquid fsrnib.
form. I prefer, however, in every ease to distil or drive
off the whole of the paraffine oil to be obtained from the
coal. The production of the desired products from a
charge of coals in a retort will be known to be finished by
the liquid ceasing to run from the worm. The crude
product of this process is an oil containing paraffine,
which, as I have already stated, I call paraffine oil. This
oil will sometimes, upon cooling to a temperature of about
40^ Fahrenheit, deposit paraffine. Other arrangements of
apparatus may be used for subjecting coals to the process
for obtaining paraffine oil therefrom, as I have described ;
but I prefer to use the apparatus above mentioned, as
being well-known and easily managed. But in order to
obtain the largest quantity of crude paraffine oil from
coals by means of this process, and produce the smallest
quantity of permanent gas by the action of the heat
employed, whatever may be the apparatus used, care must
be taken to heat the coals gradually, and to apply the
lowest temperature necessary to complete the operation.
During the distillation or driving off^ which I have
described} a permanent gas will be produced, and this gas
may either be collected or suffered to escape as may be
thought expedient."
The specification then set out a process for purifying the
crude oil, and to extract paraffine from the purified paraf-
fine oil, and concluded with the following statement : —
*' Having thus described the nature of my own invention,
and the best means with which I am acquainted for per-
forming the same, I hereby declare that I claim as my
invention the obtaining paraffine oil, or an oil containing
paraffine, from bituminous coals by heating them in the
manner hereinbefore described."
On the 7th October, 1850, and the 1st February, 1851,
580
1864.
Young
V,
Fbrnie.
Statement,
CASES IN CHAISCERY.
patents were obtained for the same discovery for Ireland
and Scotland.
The bill stated briefly that the paraffine oil was exhibited
among the chemical contributions at the Exhibition of
1851, that certain proceedings were taken by the plaintiff
to restrain the infringement of his patent, and in particular
an action in the Court of Session against the Clydesdale
Company, which was ultimately settled by a payment to
the plaintiff by the Clydesdale Company. The bill then
stated the circumstances under which the plaintiff had
ascertained that the defendants^ at their works at Leeswood
and Saltney, were infringing the plaintiff's patent by
manufacturing paraffine and paraffine oil according to the
plaintiff's process out of cannel coal. This bill was subse-
quently filed.
The defence to the bill set up by the defendant Femie
and the others in their several answers was as follows : —
First. I have not infringed the said patent of the plaintiff
Young, the process of manufacture adopted and used by
me being substantially and essentially different from that
described in the specification of the said plaintiff.
Secondly. The said letters patent are invalid for want
of novelty.
Thirdly. The said letters patent are invalid because the
specification filed by the plaintiff Young is untrue, un*
certain^ insufficient, and framed so as to mislead.
It appeared firom the evidence that the plaintiff, having,
on the suggestion of Dr. L. Playfair, taken a lease of a
petroleum spring in Derbyshire, came to the conclusion
that the petroleum was the result of a natural distillation
of bituminous substances by the heat of the earth, con-
densed through the sandstone formation. He immediately
commenced a series of experiments during two years upon
bituminous coal, and on the 17th December, 1850, applied
for his patent for obtaining paraffine and paraffine oil from
parrot coal, cannel coal, and gas coal, and shortly after-
Stateinewt,
CASES IN CHANCERY. 581
wards established his manufactory, which became sub- 16<^-
sequently very extensive. The fair result of the evidence Youno
seemed to be that the plaintiff by his process was the rKRNzs.
first who produced paraffine in such quantities as made
it commercially a profitable manufiicture. Paraffine was
first discovered by Dr. Reichenbach in 1830, and was first
obtained fi*om beechwood tar. What first attracted the
special attention of chemists was^ that paraffine, though a
white solid substance, was composed of exactly the same
elements, in exactly the same proportion, as defiant gas.
It was in fact solidified gas. and is formed by one equiva-
lent or combination of hydrogen to six of carbon. It
had been supposed by some persons that paraffine might
be obtained firom certain schists, but the plaintiff 's experi-
ments led him to conclude that the proper materials for the
product were the cannel and highly bituminous coals. The
process of dry distillation of coal had been carried on
previously to Mr. Young's discoveries (mainly for the
manufacture of gas)^ but it had been carried on at a high
degree of white or red heat, by means of which gas and tar
were produced. Coal tar contains four different elements —
crisine, which has one part hydrogen to eighteen carbon ;
naphthaline^ which contains one part hydrogen to sixteen
parts carbon ; benzole^ one part hydrogen to twelve carbon;
and cymole, one part hydrogen to nine carbon. All these
substances contain such a proportion of carbon over paraf-
fine that they are unfit for illuminating purposes. The
principle of the plaintiff's discovery was the degree of heat
at which his distillation was carried on. The heat which by
his experiments he ascertained to be proper for producing
paraffine was a low red heat which was visible in the dark.
If the heat be increased, the quantity of paraffine is dimi-
nished, while the quantities of gas and tar become increased.
This was substantially the process patented, and the 'plain-
tiff described it as improvements in the treatment of certain
bituminous mineral substances and in obtaining products
VOL IV. Q Q
YOITKO
V.
Fbrmxe.
582 CASES IN .CHANCERi;.
1864. therefrom. What he claimed as new was the mode of
obtaining the crude oil by heating bituminous coal accord-
ing to the process described.
Argument, Mr. Grove, Mr. BovilU SirH. CaimSy Mr. Hindmarchj
Mr. Webster^ Mr. Karalahe^ and Mr. Lawsan appeared for
the plaintiff.
Mr. Orove opened the case, and stated that Mr. Young's
specification described the very best mode of obtaining the
products desired. On the question of construction the
rule was that a specification was not to be read as a deed
or a plea, because those instruments had acquired by usage
a fixed definite meaning, and if there were an error, the
party relying on such instrument must suffer, rather than
that the rules of construction should be violated. But a
specification was the instruction to the present manufac-
turing world, and must be construed according to the
canon laid down in the decided cases, that it must be read
by a party willing to make himself master of the invention
and what it disclosed : Beard v. Egerton (a), Russell v.
CowUyiby In this case it was not denied that the specifi-
cation disclosed sufficiently, to a man willing to under-
stand, a mode by which he could with certainty obtain the
product desired.
The conduct of the defendants in seeking surreptitiously,
under the form of a licence to Mr. Jones, and by an appli-
cation for a licence by Mr. Femie, to get at Mr. Young's
process was strong primd facie evidence of infringement.
The second and principal ground of defence in this case was
want of novelty. Now it was not pretended that so far
as his own mind was concerned the plaintiff was not the
inventor of his process. It was not pretended that Mr.
Young took the invention frx>m any book or person, or that
the substance before the date of his {latent was known as
an article of commerce. ]
(a) 8 C.B. 165.
W ICr. M.&K.864.
CASES IN CHAiNCERY.
583
The case made by the defendants was that the discovery
was in fact an old one, and they relied on twenty-two
specifications, and on extracts from books going back 200
years.
There were one or two modern cases to which he, Mr.
Grove, desired to call attention. There used to be a notion,
which in some of the older cases had been used disadvan-
tageously to patentees, that if terms could be found in a pub-
lication prior to a patent within the four corners of which
the plaintiff's alleged discovery might be found, that that
would be an anticipation and would render the patent invalid.
That was a fallacious mode of reasoning, and fortunately was
not the law. The mere &ct of there being a previous publi-
cation in which the patentee's invention is jumbled up among
other things does not invalidate the patent. In order to
amount to an anticipation the discovery must have been
previously disclosed, so as to do away with the necessity of
an experiment, or, in other words, it must be shown that
the information contained in the specification must have
been previously given to the public. This was clearly laid
down in Hills v. The London Gaslight Company (a), in
which the question was between two patentees. In Hill y,
Evans (V) Lord Chancellor Westbury on this subject
expressed himself thus : — " Now the question is, What must
be the nature of the antecedent statement? I apprehend
the principle is correctly thus expressed : — ' The antecedent
statement must be such that a person of ordinary know-
ledge of the subject would at once perceive, understand,
and be able practically to apply the discovery without the
necessity of making further experiments and gaining
further information before the invention can be made
useful.' If something remains to be ascertained which is
necessary for the useful application of the discovery, that
affords sufficient room for another valid patent,"
1864.
YOUKO
V.
Fbrnib.
Argument,
(a) 5 H. & Nor. Ex. 312. (6) 31 Law Journal, 457.
Q Q 2
584 CASES IN CHA^XEHY.
1804.^ The world, as it were, works up to a discovery, and between
the successful discovery and the unsuccessful efforts there
is frequently but a very small step. But^ as a general rule,
Ar Impnt ^^^^ portion of the public who are concerned in a particular
branch of manufacture, be it chemical or be it mechanical,
are the best judges of who has really hit the nail on the
head, if it were permitted to use the expression. There-
fore, when they recognise it the public gets possession of
it, and their judgment is not commonly erroneous. But
always when a discovery has been made, when the public
has reaped the fruits of it, there is no case, and never was
a case, either in the history of pure science or in the
history of practical discovery, where it is not alleged,
''If you look at such a book^ and such another book,
you will find that so and so has been done, and you will
find that it has been anticipated." That is partly true
and partly false. There are in all such cases approximate
anticipations. The difference is that one man gets at the
points, hits upon the real thing which will do it, and the
reason why it will, whereas other people, although they
may have got the thing, have not acquired an accurate
knowledge which will enable them with certainty to
produce it. There cannot be a more striking illustration
of that than the history of gunpowder. The common
clap-trap notion of the invention of gunpowder is this:
that a monk of Cologne named Schwartz put sulphur,
charcoal, and saltpetre into a pot, and then when he melted
them altogether it exploded and blew off the top of the
pot. Such was the received notion in ordinary books of
what led to the discovery of gunpowder, whereas it was
well known that gunpowder was originally a Chinese
invention, and that it got from China to Arabia, Arabia
to Greece, and from Greece to England.
The Eastern term for saltpetre would be written
"berod." That term was applied to any sort of salt except
sea salt. But when other saline experiments were made
CASES IN CHANCERY.
.'585
there were all sorts of salts used^ including sea salt and
this '' berod/' and they were thought to be all one and the
same thing. Then one person tried to make gunpowder,
and if he had happened to have got saltpetre, he would have
made gunpowder from it. But if another person took a
different sort of salt, he would never make gunpowder.
The same term was applied to all salts, minus sea salt, and
that prevented the discovery of gunpowder being made
many centuries earlier than it was.
The discovery of gunpowder came first into practical
use at the Battle of Cressy, under the term of ** Greek
fire." Of course that did not give the public precise
knowledge, but that is no reason why gunpowder was
not known or partly known under the name of Greek
fire, which was nothing but another pyrotechnic term.
It was practically hidden firom the public because che-
mistry had not arrived at the point of distinguishing one
firom the other.
The above is one illustration, and that might be applied
to a vast number of other discoveries. They are fire-
quently produced before in experiment. They are produced
by other things, but the great discoverer is the man who
gives to the world a clear power of repetition — a clear
mode of reproducing the result which he says he has
arrived at That man is the discoverer. But when you read
anterior publications by the light of that discovery they
acquire a very different sense from what they would
have if read at the date they were written. That is another
important fallacy which pervades these cases. It is very
easy to say such a thing existed in A's patent or B's patent,
because now we know the conditions, and know the tem-
perature of heat necessary to produce this and that efiect,
and we can apply the value of the new chemical discovery
of parafiine to commercial uses, as applied by Mr. Young.
But at these antecedent periods they did not know this
and the proof that they did not know it was that in the
1864.
Argument.
586
CASES IN CHANCERY.
1864.
YOUHO
V.
Fernie.
Argument.
year 1850 paraffineoil wasan unknown and an undiscovered
substance. Now there was one other important matter in
this case as to the effect produced by the heat on what are
called products^ not educts. Suppose one took the oil of
bricks, which the defendants put forward as an anticipation
of this patent. If one were to soak bricks with oil, and also
soak a piece of freestone with oil, and heat it to a red heat,
and obtain an oil drop from it, that would simply be an
educt. But if one takes a chemical substance like coal, and
if in proceeding by heat one changes the component parts
and re-arranges them to produce a substance which does not
exist as that substance in coal, the result is what is called a
product, and not an educt. That is the case with paraffine.
If you powder coal and soak it in ether you either get no
paraffine or such a quantity as to be infinitesimally minute^
and the coal so treated remains just as capable of producing
paraffine as it did before, showing that paraffine and
paraffine oil (and the same may be said of other bituminous
matters) is not a substance existing in specie in the coa],
but is a substance produced by the action of heat on the
coal.
Therefore, the definite amount of heat and the other
circumstances attending the manufecture become very
important, for by comparatively slight changes you may
change the product, it not being an educt^ but a thing pro-
duced by the action of the heat upon the coal. By varying
that action you get varying products, as has been said,
increasing in carbon as you go on, and the gaseous pro-
ducts decreasing in carbon.
The defendants themselves make this a not unimportant
point, for they seek to rely upon their performing the pro-
cess at a slightly lower temperature, but there is no doubt
that when they come to the books they will take the
converse argument and say temperature is not a veiy
important matter. These different books give you this
temperature inter alia, and therefore it is not an im-
CASES lA' CHANCERY.
58;
portant matter. Mr. Young has given what is un-
doubtedly a practical process. If persons can do it so as
to get fairly out of his patent, either by not acting upon
the materials which he directs them to use or not acting
fairly and substantially in the way he directs them to acti
they are at liberty to do so. fiut of course no infringe-
ment is an absolute imitation. Every infringer tries to
make his infringement appear different from the patent.
The question is one of degree^ and one that the Court
will look at as a judge of facts as well as of law, and will
see whether it comes within the line, and whether or not
these persons have appropriated substantially Mr. Young's
discovery.
In Steiner v. IIeald(a) a patent had been obtained for pro-
ducing a dye called guarancine from refuse madder, by re-
heating it in the way madder was heated. It was contended
in that case, as here, that any one who obtained guarancine
from fresh madder must know that it could be obtained from
spent madder^ but the Court of Error held that it did not
follow, because sulphuric acid would extract guarancine
from fresh madder, that it would extract it also from spent
madder. To ascertain this an experiment was necessary,
and therefore the direction of the Court below, which
declared the process could not be a new invention, was
reversed.
Again, in Muntz v. Foster (b), the yellow metal patent,
the same thing had been done previously with the same
two metals, but Mr. Muntz ascertained that the only
thing which invariably succeeded was the best selected
copper with foreign zinc. The novelty was the quality
of the metal. That was a far stronger case than this.
On the whole case, therefore, it was submitted that the
plaintiff had made an important practical discovery, em-
bodied within the terms ** new manner of manufacture "
1864.
YOUKG
V.
Fbhnib.
A rgument.
[a) 6 Ex. 607.
(h) 2 Webster, 92, 93.
588 CASES IN CHANCERY.
1804. used in the statute of James under which at the present day
YouKG letters patent are granted. It was equally clear the defen-
Fermib. <l£tnts had infringed that paten€ and the plaintiff was entitled
, , to the relief he asked by his bill.
Argument, •'
The Attorney' General (yvith. whom were Sir F. KeUy^
Mr. Wyllya Mackesan, Mr. Chance, Mr. Downing Bruce^
and Mr. Aston). — Before the evidence is brought to the
attention of the Court perhaps it would be as well to
consider the construction of the specification before going
into the general evidence in the whole of the case. This
was the course adopted by the Lord Chancellor in the
late case of FoxweJi v. Bostock^ on the ground that the
« direction of the evidence and its weight might materially
be affected by the construction the Court? put on the
specification. In this case two important questions depend
on the construction of the specification. In Foxwell v.
Boatock the question raised was on a patent for ma-
chinery.
[The Vice-Chancellor. — I shall better understand the
arguments on the construction of the specification after I
have heard the whole of the evidence in the case.]
The evidence was then adduced. Dr. A. W. Hoffman
was the first witness examined. He was one of the jurors
of the Exhibition of 1851, not sworn, and jointly
withMr. W. De La Rue prepared the report for class 29.
A discussion arose whether such report could be put in,
and Young v. White (a) was cited against the admission
of such report. Ultimately the report was admitted, to
prove the notoriety of the discovery. Dr. Hoffman was
cross-examined by the Attorney-General mainly to show,
first, that paraffine might be produced fi'om schale or
schist ; secondly, that the discovery of Mr. Young had been
anticipated. The cases of Young v. Clydesdale Company
and Gillespie v. Russell, Du BuissorCs specification. Count
(a) 17 Deav. 536—7.
CASES IN CHANCERY.
589
de ITompscVs patent y ReichenhacKs xcorksy Kiddo, Ihtmas^
Poggtndarfy Marandy Eticyelopedie Afithodiquey M. de
GensanneyJf. Sage^ if. SeUiqwy Lord DundanaiTsproe&sSy
Dr. Ure^s Dictionary^ Sir Robert Kane'e treatiee of 184tly
and Annals of JPhilosophyyhy Dr. Henry y were referred to.
The ease of Davenport v. Jepson (a), before Vice-
Chancellor Wood, was referred to as to the mode of pro-
ceeding. His Honour stated his intention to decide the
cause without the assistance of a jury.
Dr. Lyon Playiair, Sir R. E^ane.Dr. Odling, the plaintiff,
and a great number of scientific witnesses were examined
and cross-examined on the question of the novelty of the
discovery. There were also a great number of witnesses
examined and cross-examined on the question of infringe-
ment. On the eighth day of the proceedings the defen-
dants' case was opened.
The Attorney- Generalj on behalf of the defendants, —
Before calling the attention of the Court to the examina-
tion of the precise thing claimed in the specification it
ought to be premised that there has been no previoas
decision on this question, the materials now before the
Court being presented for the first time for consideration,
the alleged infringement differing from that alleged in
former cases.
The duty of a patentee is to distinguish on the face of
the specification what he claims and what he does not
claim as covered by the specification, because if the specifi-
cation in its general terms includes something not new or
not available for the purposes mentioned, and which is not
distinguished from what is specifically claimed, the specifi-
cation fails altogether. This is the well-established canon
of construction.
In Holmes v. The London and North-Western Railway
Company (J>)y decided in 1852, the specification claimed an
(a) On ap|)eal before the Lorili» Justicet^, Dec. IG, 1802, not re|)orteii.
(b) 1-2 C. B. 831 ; ».c. Macrory, Patent Cnseji, 4.
1864.
TOURG
Fkbkib.
590
CASES IN CHANCERY.
1864.
YOUMO
Fbrkib.
Argument,
improved turning-table consisting of several parts, and it
was held that the patent mast be treated as claiming a
right to each of the parts, and not merely the whole in
combination ; and it appearing that some of the parts
had been used before, the defendants were held entitled
to a verdict on the issue of the sufficiency of the specifi-
cation. The earlier cases were discussed in that case, and
Sir J. Jervis, who delivered the judgment of the Court,
made the following observations : — " It is admitted, as a
general proposition, that every patentee must in his specifi-
cation describe the nature of his invention either directly
or in such a way as that those who read the specification
with common ordinary understanding, and fairly read it,
may see and understand what is new and what is old.
And it is likewise, on the other hand, as equally free from
every doubt that a patentee may take a number of old and
well-known instruments or parts of instruments and may
have a good patent for a combination of the known instru-
ments or parts, if he so describes it in his specification.'*
The learned judge then considered the various cases, and
continued thus: — " Nobody can read this specification
without seeing that at the time the specification was made,
as the counsel for the plaintiff admits, Harrison did not
know that Handcock's patent (that was an earlier patent
for a certain portion of the thing which he applied to a
different whole) was in existence." Then how was it
possible, if he did not know of it, to point out what was
old and what was new ? The Lord Chief Justice enlarged
further upon that and held it bad.
Mr. Justice Maule held the same thing, saying, ** Eut
in fact, without looking at anything external to the specifi-
cation, which is the true way of construing it, it is most
manifest that he claimed every one part as much as he
claimed every other. There is no distinction, and you must
treat it as a claim to the whole. Now it was evident
upon the evidence in this case, and the finding of the jury,
CASES IN CHANCERY.
591
that the whole was not his invention." The learned judge
then added, " You are not to look for this purpose at any-
thing external to the specification. You must confine
yourself to what appears in the four comers of the docu-
ment itself; and if you do not find there the distinction
drawn, the patentee must stand or fall by the test, whether
every part of that which is comprehended in it is new."
In Tetley v. Easton (a) it was held that a specification
describing a patent invention must, unless a contrary
intention appears, be deemed to claim all that it describes
not only as a whole taken in combination, but also all the
essential component parts. There the specification de-
scribed a centrifugal pump consisting of a hollow wheel
revolving within a case furnished with proper pipes for
carrying the water, and the wheel was not disclaimed nor
stated to be old. Various modes of constructing the pumps
were described. The specification contained a claim in
general terms to '^ the machinery for raising and impelling
water^" and another to the application of the before-men-
tioned inventions both when used in combination or severally.
It was held that the specification claimed the wheel. Lord
Campbell, approving of the doctrine laid down in Holmes v.
The London and North- Western Railway Company^ said,
'^ According to the law laid down in Holmes v. The London
and North' Western Railway Company^ there must be a
verdict for the defendant."
In Carpenter v. Smith (6) there was a patent for improve-
ment in locks and other securities applicable to doors and
other purposes^ and a subsequent partial disclaimer. Lord
Abinger said, " The objection to this specification origi-
nally is plain on the face of it, and it is this, it is required
as a condition of every patent that the patentee shall set
forth in his specification a true account and description of
his patent or invention, and it is necessary in that specifi-
1864.
YODKO
V.
Fesnie.
Argument,
(a) 2 EUifl & B. 956 ; Macrory, 82. (5) 9 M. &W. 300 ; 1 Web»ter, 632.
592
CASES IN CHAKCERY.
1804.
Young
r.
Fern IK.
A rgumcnt»
cation that he should state what his invention is, what he
claims to be new, and what he admits to be old ; for if the
specification states simply the whole machinery which he
uses and which he wishes to introduce into use, and claims
the whole of that as new, and does not state that he claims
either any particular part or the combination of the whole
as new, why then his patent must be taken to be a patent
for the whole and for each particular part, and his patent
would be y6id if any particular part turns out to be old or
the combination itself not new."
Now in connection with that case, and more particularly
with that aspect oj it which is noticed by Lord Campbell —
namely, the necessity that the specification must be clear,
unambiguous, and not uncertain — he, the Attorney- General,
would refer to one or two earlier cases in which that had
been held, coupled with this result^ that wherever the patent
is not so expressed as sufiiciently to guide and in no
respect to mislead the public or those who follow and work
upon it that patent is bad. Now one of the earliest and
most frequently referred to cases on that subject was OTumer
V. Winter (a\ afterwards referred to with approbation
in a later case. The point which was determined as
stated in the note was this. A patent is void if the specifi-
cation is ambiguous or gives directions which tend to
mislead the public. Mr. Justice BuUer said, '^Many
cases upon patents have arisen within our memory, most
of which have been decided against the patentees upon the
ground of their not having made a full and fair discoveiy
of their inventions. Whenever it appears that the patentee
has made a fair disclosure I have always had a strong bias
in his favour, because in that case he is entitled to the pro-
tection which the law gives him." Then he says, '* But
where the discovery is not fully made the Court ought to look
with a very watchful eye, to prevent any imposition on the
public."
a) 1 Teim Rep. 602 ; s.c. 1 Webster, 81.
CASES IN CHANCERY.
593
At page 606 he says, "The question then was
whether the plaintiff in this ease had made a fair dis-
covery. I do not agree with the counsel who have argued
against the rule in saying that it was not necessary for
the plaintiff to give any evidence to show what the in-
vention was, and that the proof that the specification was
improper lay on the defendant, for I hold that a plaintiff
must give some evidence to show what his invention was, un-
less the other side admits that it has been tried and suc-
ceeds. But whenever the patentee brings an action on his
patent, if the novelty or effect of the invention be disputed, he
must show in what his invention consists and that he pro-
duced the effect proposed by the patent in the manner speci-
fied. Slight evidence of this on his part is sufficient, and it
is then incumbent on the defendant to falsify the specifica-
tion. Now in this case no evidence was offered by the
plaintiff to show that he had ever made use of the several
different ingredients mentioned in the specification, as, for
instance, mimium, which he had nevertheless inserted in the
patent. Nor did he give any evidence to show how the
yellow colour was produced, if he could only make it with
two or three of the ingredients specified, and he has inserted
others which will not answer the purpose that will avoid
the patent. So if he makes the article for which the
patent is granted with cheaper materials than those which
he has enumerated, although the latter will answer the
purpose equally well, the patent is void, because he does
not put the public in possession of his invention or enable
them to derive the same benefit which he himself does."
There was another proposition connected with those
which had been before referred to : that is, if the patentee in
fact has covered by his patent more things than those which
will really answer the purpose, not only if some of them are
old, then he fails ; and not only if it is ambiguous whether
they are old or new upon the face of the patent, then he fails,
but also if some are not usefiil for the purpose he fails.
1864.
Young
Fbrme.
Argument,
594
CASES IN CHANCERY.
1S04.
Young
V,
FSRNIE.
Argument.
Turner v. Winter was referred to afterguards in the ease of
Deromev. Fairie (a). We have got there something about
bituminous schistus for a very different purpose — namely,
the purification of sugar. The passage referred to
occurs in the judgment of Mr. Baron BoUand. There
are several passages in all the judgments which are to the
purpose. And perhaps Mr. Baron Parke's observations
may be taken as expressing the case. He says, ** The specifi-
cation does on the whole truly describe the nature of the
invention as declared in the patent, nor does there appear
to be sufficient obscurity in the clause with reference to
the baking to avoid the patent on that ground. But it
seems to me to have been clearly the duty of the plaintiff
to have done one of two things — viz., either to have shown
that bituminous schistus, with the admixture of sulphurate
of iron, as it is known to exist in England, would answer
the purpose beneficially, or that the sulphuret could be
removed by any practical man so as to give no colour to
the syrup." He doubted whether there was not some evi-
dence, but the Court in general thought there was none.
Mr. Baron BoUand said he did not agree to the objection
which was taken to the title, and then he said, " Very early
in the argument it appeared to me that justice could not
be done in this case unless we granted a new trial, because
on the judge's notes it appeared that no evidence had been
given by the plaintiff that bituminous schistus, procured
from whatever place in which that substance could be
found, would answer the purpose intended — that is, he had
specified for bituminous schistus generally, but he had not
shown by the evidence at all that schistus, wherever found,
would answer the purpose intended. The only evidence
which the plaintiff gave that bituminous schistus when
used in the process described produced the desired effect
applied to a pulverised substance which the witness had
purchased firom the plaintiff at Paris. Now if the plaintiff
(a) 12 Ciom|>ton, M. & R. 476 ; 0.c. 1 Webster, 152-4.
OASES IN CHANCERY.
595
had gone on to show that that substance was bitaminoos
schistas as to which nothing had been done, bat that it pro-
duced the effect in its natural state, a great part of the
difficulty would have been removed; but that not being
proved, it w;is left in doubt whether all bituminous schistus
would produce the effect attributed to it in the patent
Without 'oubt the onus of that proof lay on the plaintiff.
An auth )rity, if wanting^ might be found in the judgment of
Mr. Justice BuUer in the very early case of Turner v.
Winter ; and that very learned judge added a most extensive
acquaintance with the subject of patent right to that
knowledge of law in which he was at least equal to any
person who before or since his time has occupied a seat on
the bench. He would therefore advert more particularly to
his judgment in that case in order to adopt its terms in
application to the present." Then he cited a passage which
had been already read to the Court.
Morgan v. Seaward (a), which is on the same principle,
illustrates it in another point of view. That case determines
that exceedingly well known rule which prevails in patents
— and which ought to warn patentees not to make an
omnibus jumble in their patents for a great variety of
things hardly, if at all, connected together — ^that if any one
of several inventions recited in a patent for improvements
be not an improvement, the patent is wholly void.
The Attorney^ General then called attention to the
claim made by the specification^ submitting that^ as to the
material, the plaintiff claimed the exclusive right to extract
paraffine and paraffine oil from bituminous coal. Secondly,
as to the process, he claimed the plan of breaking up the
coal into small pieces, and by a well-known and easily
arranged apparatus^ which he did not claim, defined his
process thus : — " The retort, being closed in the usual
manner, is then to be gradually heated up to a low red
heat, at which it is to be kept until volatile products cease
1864.
YOUKO
p.
Fbrvib.
Argument,
(a) 1 Webster, 187.
596
CASES IN CHANCERY.
1864«
Argument.
to come off. Care mast be taken to keep the temperatare
of the retort from rising above that of a low red heat, so
as to prevent as mutsh as possible the desired products of
the process being converted into permanent gas." This
was what was relied on as constituting the alleged novelty.
The low red heat was described as being at 977 to 980
degrees of Fahrenheit.
The Attorney- General then called attention to the cases
of Kay V. Marshall (a), Young v. White^ and the Clydes-
dale ca3e[b)j and called attention to several treatises in
which coal was defined, contending that there was no novelty
in the material or the process.
The Attorney 'General then called attention to Reichen-
bach's mode of distillation, observing that Dr. Hoffinan
admitted that if Reichenbach had been operating on
boghead coal, the product would have been the crude oil of
the plaintiff, and that the paraffine of Reichenbach was
a large constituent of the plaintiff's crude oil. It was
clear, therefore^ that the production of the crude oil by
distillation at a low temperature was known ; but if so^ the
merely determining the precise degree of temperature is
not the subject of a patent: Kay v. Marshall {c).
Again, if the extraction of the crude oil from bituminous
shale by the same process was a known thing, no patent
could be legally taken out for the application of it to a
different but analogous substance in order to obtain tlie
same product. In The Queen v. Cutler{d) the marginal note
was as follows: — **The mere application of a known
article to a new use, the mode of application not being
new, but before the date of the patent having been used
in applying an analogous article to the same purpose, is
not a manu£Etcture within the meaning of the statute, an<I
cannot be made the subject of a patent." The same
principle was laid down in a case as to a patent for wheels
(a) 2 WelMter, 34, .36.
ip) Not reportea .
(c) 8 Clk. & Fin. 245 ; 2 Webster. :}J).
(d) Macrory.. 124, 13i)-13S.
597
1864.
CASES IX CHANCERY.
in Lo8hY.Hagtie(a),axid in a case as to a patent for im-
proving the texture of threads of cotton and linen yarns,
Brook y. Aston {b).
[The Vice-Chancellor. — There seems to be no Argument.
analogy between those cases and the present, because if
the doctrine laid down there were to be adopted implicitly
as to chemical subjects it would be impossible to foretell
results.]
The Attorney-General — In Calvert v. Ashburn^c), in
which the judgment of the Court of Queen's Bench was
affirmed by the Exchequer Chamber, the same principle was
applied to a patent for making starch.
On the distinction between chemical discoveries and
others, his Honour mentioned the case of Stevens v.
Keating (d).
Jones V. Berger(e), a nisi prius decision, was mentioned
by Mr. Grove.
The Attorney- General then concluded his argument by
directing the attention of the Court to the evidence.
The witnesses for the defendants were then examined.
During the course of the examination of Professor Ander-
son the Vice-Chancellor suggested that it was unimportant
to adduce evidence of what had taken place anterior to
Reichenbach's discovery, as it was admitted he had dis-
covered an oil containing paraffine and other elements by
subjecting beechwood tar to his process.
Sir Fitzroy Kelly, for the defendants, in answer, said
he would show that the obtaining by the gradual low
red heat process the products which the plaintiff called
paraffine oil from bituminous coal was not new at the date
of the patent.
Sir Fitzroy Kelly (on the 29th day) addressed the Court
(a) 1 Webster, 207.
(b) S Ellis & Bl. 478.
(c) Not reported.
VOL IV.
(d) 2 Phil. 333; 2 Webster,
2nd Exchequer, 772.
(e) Not reported.
U K
598
CASES IN CHANCERY.
18G4.
Young
V.
Fernib.
Argument.
on the entire ease, and, having pointed out the precise
nature of the claim made in the specification^ contended
that a patentee was bound to point out in bis specification
what it is, whether products or the means of obtaining
products, the things themselves or the process^ which he
claimed. He was further bound to point out what he
claimed as new, and what part of the thing produced, or
of the process used, which he claimed as new, and what he
did not claim. This was essential in every valid specifi-
cation, because otherwise a patentee would be establishing
his right to a monopoly of a well-known discovery.
In Morgan v. Seward (a) it is laid down that '^ the speci-
fication is to warn the public of what is prohibited, and to
teach them the invention, and a specification which casts
upon the public the labour and expense of experiments is
bad."
Stevens v. Keating (b) lays down the rule that a just
construction is to be put upon the specification — nothing
is to be contended either for or against it, but it must be
considered according to the ordinary construction of
language upon the whole, and every portion of the language
on which a question may arise.
In Hill V. Thompson (c) it was laid down that *' if the
specification seeks to cover more than is actually new and
useful, it vitiates the whole, rendering it inefiectual even
to the extent to which it might otherwise have been sup-
ported." This principle applied to this case, because one
branch of the contention here is that at all events part of
the plaintiff's invention is new — the paraffine, for instance,
or the paraffine oil; but suppose, for argument's sake, that
it be so, still if the process claimed as new, or any part of
it. was previously known the whole patent is bad. Again,
in HiU V. Thompson it is laid down, " If the invention be
an improvement it must distinctly appear on the face of
(a) 2 WebBter, 173, 174, & 176.
(b) Ibid. 187.
(c) 1 Webster, 237, 247, k 249.
CASES IN CHA!«CEUY.
the specification to be claimed as such^ i.e., it must not be
claimed as an invention ;" and, farther, in that case it was
laid down» " K any material part of the alleged discoYery
f&iled the patent is void."
Again, in Kay v. Marshall (a) Lord Cottenham says,
'' The claim is introduced for the security of the patentee,
that he may not be supposed to claim more than he can
support as the invention, lest in describing his invention
and the means of performing it, especially in the case of an
improvement, he may inadvertently have described some-
thing not new, in order to render his description of the
improvement intelligible. The claim is not intended to
aid the description, but to ascertain the extent of what is
claimed as new."
In Mac/arlane v. Price (&), an old case. Lord Ellen-
borough said, *' The patentee in his specification ought to
to inform the person who consults it what is new and what
is old."
In Bramah v. Hardeastle (c) Lord Kenyon observed,
^' Unlearned men look at the specification and suppose
everything is new which is there, except, perhaps, things
common use."
In Carpenter v. Smith (d), which was an action for the
infringement of a particular kind of lock. Lord Abinger
points out the criterion by which the validity of a patent
of this nature is to be ascertained. Lord Abinger saysCe),
^ It is required as a condition of every patent that the
patentee shall set forth in his specification a true account
and description of his patent or invention, and it is necessary
in that specification that he should state what his invention
is, what he claims to be new, and what he admits to be
old, for if the specification states simply the whole ma-
(a) 2 Webster, 39 ; 8.c. 1 M. &
C. 373.
(6) 1 Webster, 75; s.c. Q. B.
1 Stark, 109.
B B 2
(c) Ibid. 76; s.c. Holroyd, 81.
(d) Ibid. 532.
{e) Ibid. 532,
699
1864.
Young
V.
Fkrnib.
Argument,
600
1864.
YOUKO
o.
Fbrnib.
Argument.
CASES IN CHANCERY.
chinery which he uses, and which he wishes to introduce
into use, and claims the whole of that as new, his patent
must be taken as a patent for the whole, and for each
particular part, and his patent will be void if any particular
part turns out to be old, or the combination itself not new."
This ruling of Lord Abinger was adopted after an elaborate
argument by the Court, and the patent was held bad.
In Holmes Y. The London and North- fVestem BaUway
Company (a), where the patent was for a turn-table, the
patentee not having pointed out what he claimed as new and
what he admitted to be old, it was held that the patent was
bad. The specification did not, to use the language of the
Lord Chief Justice in that case, '' describe the nature of the
invention directly or in such a way as that those who read
the specification with common ordinary understanding, and
fairly read it, may see what is new and what is old.''
Applying that doctrine to this case, the plaintiff 's patent
could not be sustained.
Again, in Tetley v. Eaeton (b) it was laid down that a
specification must, unless a contrary intention appears, be
deemed to claim all that it describes, not only as a whole
taken in combination, but also all the essential points of
which such combination is composed. Lord Campbell
in that case expressed himself to the same effect. But, in
order to save the multiplication of authorities, he would
readthefoUowing passage from Mr. Hindmarch's treatise:—
'^ If the specification describes more than the invention
itself, it must clearly point out which of the things
described are old and which of them are new; and if the
subject of the patent privilege be an addition to or an
improvement upon an old machine or other article, the
specification must not describe the whole machine or article
without distinguishing between the old and new parts, for
(a) 12C.B.831; s.c. Macrory,
Cased, 14, 26, 28, and 29.
(b) Macrory, 82 ; 6.c. 2 Ellis k
fil. 956.
CASES IN CHANCERY.
601
the proviso in the patent requires that the invention not
only be ascertained, but ascertained witli particularity; and
it is impossible to contend that an invention is so ascer-
tained by a specification if it describes without distinction
many things which are old as well as the invention itself."
See also Crossby v. Potter (a). Turner v. Winter (b)^
Bexy. Wheeler {c).
Again, a patent is void when otber persons than the
patentee have previously for purposes of profit used the
same process to obtain the same products: ComUh v.
JSjeene{d), Oxhson v. Brand (e)^ Carpenter v. Smith (J\
In the latter case the ruling of Lord Abinger was approved
by the whole Court. TheHouaehiU Company v. Neilaon (g)
and Heath v. Unwin (A) were to the same effect. It was
here in evidence that at least two persons had for a series
of years been using the same process as the plaintiff's to
obtain the same products. Stead v. Williams (t), HonibaU
v. Bloomer {jD^ and Heath v. Smith (k) were also cited.
Lastly, it was settled on principle that a patent for the
obtaining of certain products by a particular process from
bituminous coal cannot be supported if it appear that
another person has obtained the same product by a similar
process from shale.
Brooke v. Aston (/), Bush v. Fox (m), Harwood v. Or eat
Northern Railway Company (n)yHorton y.Mabon(o), The
Patent Bottle Envelope Company v. Seymer(p)^ Ormson
V. Clark (j), Lewis v. Marling^ and Jones v. Pearee.
The learned counsel then called attention to the question
1S64.
Young
V.
Fbrnib.
Argument,
(a) Mac. 253.
(6) 1 Web. P.C. 80 k 81.
(c) 2 B. & Aid. 345.
(d) 1 Web. 607, 609, 511, 512,
and 519.
{e) Ibid. 628-630.
(/) Ibid. 534.
(g) Ibid. 718.
(A) ? Web. 219,
(0 2 Web. 136.
0') Ibid. 199.
(k) Ibid. 268.
(0 8 Ell. &B. 478.
(m) 1 Macrory, 164.
(n) 2 B. & Smith, 194.
(o) 12 C.B. (N.S.) 437.
(p) 6 C. B. (N.S.) 164.
(q) 32 L. J. (C.P.) 9.
602 CASES IN CHANCERY.
166*. of the iniringement, and concluded his argument on the
YooNG Slst day.
V,
fbrkie. |-rpjj^ Vice-Chancellor said that he required no reply
ArfjHintnt. as to that part of the case which related to the extracts
and previous publication.]
Mr. Grovey in reply, submitted that the fallacy of the
defendants' case lay in applying subsequent knowledge to
an anterior state of facts, and, secondly, in assuming that
the legal maxim, Omne majus in se continet mmus^ applied
to scientific discoveries. One man might anticipate in
general terms what a subsequent discoverer reduced to a
definite practical form which ensured reproduction. LJland
undoubtedly saw the planet Neptune centuries before^ but
that did not detract from the credit due to Le Verrier and
Galle. The discoverer who first gave definite information
sufficient to ensure reproduction was able to support a
patent for discovery.
In Hilly. The London Gaslight Company {ci) the main
question was whether the patent was too general. It cer-
tainly was more general than Mr. Young's, but the Court,
having reviewed the case of Bush v. Fox^ sustained the
patent.
InBetUY.Metiziesip^^yfhere the objection was similar,the
House of Lords, reversing the decision of the Court of
Queen's Bench, supjiorted the patent. Muniz v. For8ter{c}%
the yellow metal patent, laid down the same principle.
But, as his Honour had observed, there was a distinction
between chemical patents and mechanical patents: che-
mical patents depend on the molecular action of matter, and
cannot be predicted a priori, A brush that will brush a coat
will brush a waistcoat ; but, except by experiment, it cannot
be known that nitric acid will have the same efiect upon
soda that it has upon potash. The law of application to
analogous substances of a similar process does not apply
(a) 5 H. & N. 312, (c) 2 Web. 106.
(5) lOH.ofL. C. 117.
CASES IN CHANCERY.
603
to chemical patents : Steiner v. HecUd {a\ Booth v. Kon^
nard(b). The ease of Cahert v. Ashbum^c), which was
relied on by the defendants, had no application to this ease,
because there the patentee by a mistake claimed what was
known to be old.
Again, it was said that the plaintiff's discovery was
really a discovery of the value of boghead coal ; but, sup-
posing that were so, the patent was valid. He produced
by a known chemical process a better and cheaper and
more abundant product. That was exactly the case of
Crane v. Frice (d), so that even on the defendants* own
showing their case failed.
Again it was objected that the plaintiff's specification
was not sufficiently accurate and precise; but here quite
sufficient was stated to enable a person of ordinary under-
standing to perform the operation : Stevens v. Keating (e)
JRueeell y* Cowley {/% Neihon v. Harford (g), and Beard
V. Egerton (A).
An infringement of part of a patent is an infringement
of the whole: Lister v. Leather (i). Nor does an abandon-
ment of a part of an invention destroy the right to a patent :
Jones y. Pearce(J% Lewis v. Marling (h\ Re Newall v.
Elliott il).
It is not necessary that the infringer should exactly follow
the patent : Jupe v. Pratt (m), citing Crossley v. Beverley.
Oalhway v. Bladen^ L Web. 529^ was also cited.
The Vicb-Chancellor: —
The main objection to the validity of the plaintiff's
patent is that both as to the process and the material
there is nothing new, and that the specification indicates
(a) 6 Ex. 607.
(6) 1 H. & N. 527.
(c) Not reported.
(rf) 1 Web. 409.
(e) 2 Web. 187.
(/) 1 Cr. M. & R. 864.
{g) 8 M. & W. 80C; 1 Web. 328.
(h) 8 C. fi. 165.
(i) 8 £11. k B. 1004.
U) 1 Web. 124.
{k) Ibid. 401.
{I) 4 C. B. (N. S.) 269.
m) 1 Web. 146.
1864.
YOUMO
r.
Fkrnib.
Judgment,
604
1864.
YOUKG
V,
Fernie.
Judgment*
CASES IN CHANCERY.
nothing which was not publicly known and publicly used
before the date of the patent.
It appears from the evidence that for very many years
before the discovery of the substances now called paraffine
and paraffine oils the distillation of coals and bituminous
substances, at every variety of temperature, had been well
known and practised for the production of tars and oils
which had been used for lubrication of the ruder kinds of
machinery and for burning. It is certain that the dis-
coveries by Keichenbach of paraffine, naphthaline, and
various other distinct substances, as products from the
carbonisation of animal tar, vegetable tar, and coal tar,
about the year 1832^ were hailed by men of science as
important discoveries. In one passage of his writings, as
printed in the Extracts before the Court, Reichenbach
says^ '* There must necessarily be several ways and means
of getting at a body of so strong a constitution as paraffine^
when mixed up with others so easily decomposed as those
which we will for the present consider under the collective
denomination of empyreumatic oils. I have come upon
the track of some of these ; others^ perhaps better ones,
the future will discover."
It is certain that Keichenbach, although he ascertained
the existence of paraffine in coal, did not indicate coal of
any kind as the material capable of producing paraffine or
paraffine oils in most abundance. There is ample evidence
that the attention of practical chemists was previously to
the date of Young's patent laboriously directed to discover
the proper material and the proper means of producing
these articles in sufficiently large quantities for commer-
cial purposes. Amongst others^ Hompesch's patent was
obtained in 1841 for obtaining oils from schist or clay
slate and asphalte ; and his memorandum of alteration is
made for the purpose of confining it to "other rocks or
minerals containing bitumen or bituminous substances.*'
Dubuisson's patent, granted in 1845, is remarkable for its
recital that in England all attempts to make bituminous
CASES IN CHANGERT.
605
fchistos useful had failed. His specification claims a
particular apparatus and process, and it states that the
presence of paraffine is scarcely perceptible in bituminous
stone, asphalte, or other bituminous mineral substances,
and that it is in schistus it is contained in the largest pro-
portion.
There is no evidence of any specification, of any patents,
or any publication in which cannel coal, or coal which
produces defiant and other highly illuminating gases in
considerable quantity, was indicated as the class of ma-
terials, among the wide range of animal, vegetable, and
mineral substances, which, subjected to a proper process,
would produce paraffine and the oils called by Young
paraffine oils in large quantities, so as to create a manu-
facture for commercial purposes, till Young's specification
was published. Cannel coals had been tried by many, but
without success.
Among the many practical and manufacturing chemists
who had been vainly attempting to find out how to manu-
facture paraffine oils and paraffine, so as to supply the
market, none had been fortunate. The fair result of the
immense load of evidence in this case shows the prevailing
opinion to have been that not coals of any kind, but
shales or schists properly so called, were the best material.
The witnesses of the defendants give evidence which seems
convincing on this subject.
Mr. Kirkham, a practical and manufacturing chemist,
has proved that from the year 1845 he had been making
experiments on what he calls crude oil, and the distillation
of various kinds of coals, including cannel coals, at a
temperature of something like 700 degrees of Fahrenheit,
for the purpose of ascertaining what oil they would pro-
duce ; but that he could not succeed in getting quantities
of oil firom these various kinds of coal of any commercial
value, although he distilled in large quantities. The
results he obtained from cannel coals he found little better
than from Newcastle coals. This witness, who states these
1864.
Young
V,
FSUNIK.
Judgment,
1864.
Young
V,
FsHzrxB.
Judgmentm
CAS&S IN CHANCERY.
factS; states also, with perfect confidence, that there ii
nothing new in Tonng's specification, and nothing de^
scribed in it which he did not know before. This statement
is true, in this sense, that it was well known that coals^
cannel coals, as well as every other animal, vegetable, or
mineral production, could be distilled at any temperature
within a very wide range, and would produce parafBne and
paraffine oils* But it is not true, in this sense, that he knew
before he read Young'sspecification which class of substances,
among many^ and which temperature in a wide range, and
which process, among many, would supply the commercial
world and the public with a class of paraffine and paraf-
fine oils which so many were in vain seeking to supply, till
the manu&cture of Young had supplied it. From the
evidence of this witness, and the evidence of Fisher, a
practical and manufacturing chemist, and the evidence of
Parkes, a very intelligent witness, it appears, when ac-
curately weighed, that these persons, like many others,
were unsuccessfiiUy attempting to manufacture paraffine oils
and paraffine for commercial purposes. Fisher, in par-
ticular, seems to have been working for years extensively
to produce paraffine oils of a quality to supply the market
He distilled shales and coals of various kinds, including
boghead itself, in considerable quantities. He states that
he was largely engaged iti the manure trade, and has had
by him as many as one thousand or two thousand gallons
of oils, produced, as he says, from " coals, shales, cannel^
and different things." He supplied the other witness,
Parkes, with oils, out of which he extracted paraffine ; and,
according to Parkes's statement, the total amount supplied
to him at various times during several years was not less
than one hundred gallons altogether.
Parkes also was engaged in experiments as to the pro-
duction of burning oils and paraffine from shales and coals,
with a view to perfect a manufacture, for which, if he
could have succeeded, he says he wished to obtain a patent
CASES IN CHANCERY.
ExperimentaUy he had gone so fiir as to produce small
pieces of candle and night lights. This witness, who
seems an intelligent person, employed Fish^, and gave
him instructions and suggestions as to the distillation of
shales, and coals, and cannels for the production of paraf-
fine oils. But it is needless to go farther than this evidence,
produced by the defendants of these three persons. Kirk-
ham, Fisher, and Parkes, the most important practical
witnesses of the defendants, for clear proof that they, like
so many others, were laboriously endeavouring to effect,
and entirely failed in effecting, the discovery made by
Young. They did not discover that cannel coals and other
coals which yield defiant and other highly illuminating
gases were the proper material.
The completeness of the &ilure is demonstated by two
facts — ^first, that the oils sent by Mr. Fisher to the Great
Exhibition of 1851 were rejected and refused a place on
account of their objectionable quality and offensive smell ;
and, secondly, that after Young's patent, in Fisher's corre-
spondence with a person named Clift, it is stated by the
latter that Young could not make the oil so good fi:om
coals, and would direct his attention to the native bitumens ;
and a question is asked as to whether Fisher would work
his retort beyond a cherry red.
This correspondence is in May, 1861, and it affords
ample evidence that the material, and the process, and the
temperature indicated by Young were not those used or
practised by them.
Each of these three witnesses, like most of the others
for the defendants, says that Young's specification contains
nothing new. No doubt this is true in the sense which I
have already distinguished. But it is not true in the sense
in which the law requires that the word '' new " should be
used and understood on the question to be decided in this
cause. Mr. Parkes states that he was asked by Mr. Fisher
to go to Scotland as a witness against the plaintiff Young,
607
1S64.
TouHa
FsmifiB.
608
CASES IN CHANCERY.
1864.
Young
V.
Fbrnxb.
Judgment,
in an action in which the validity of the patent was con-
tested on grounds similar to the most material in the
present case ; bat he declined to go, for this good reason,
that he considered Young ought to succeed as the first
public introducer of the manu£BU!ture.
Turning now to the men of science who have supported
the defendants' case by their testimony, Dr. Alfi:^ Swaine
Taylor stated that the amount of defiant gas is no criterion
of the quantity of paraffine that any particular coal will
yield. But in his cross-examination he admitted that he
did not examine the quantity of defiant gas in the coals,
and that he had made no experiments as to whether coals
yield defiant gas in the same ratio as paraffine. He admits
that he was not aware before Young's patent that paraffine
could be extracted firom coal in merchantable quantities.
He says that although he knew paraffine was extracted
from coal, yet Young's patent process came upon him as a
novelty, and that it was a new thing to hear of it in the
quantity which Young produced.
Dr. Anderson, who is another of the defendants' im-
portant scientific witnesses, is remarkable for his change
of opinion on the question of novelty. He was one of the
witnesses for Mr. Young in the Scotch cause. His report
made with reference to that case is at variance with his
evidence now given. He has stated the cause of his con*
version to be the knowledge he had since acquired by what
he had read of Selligue's works, and in the specification of
Happey's patent, and in Black's Elements of Chemistry.
When these writings are looked at his reasons and
explanations as to his change of opinion appear to be so
very lame that the value of his evidence is reduced to a
low degree.
He and the other scientific witness^ together with work-
men and others who gave evidence and a narrative of
experiments on the questions of temperature and materials^
Judgment
CASES IN CHANCERY. 600
seem to me to have afforded no real assistance to the 1B64.
defendants' case. Young
Experiments conducted for the express purpose of manu- fbrkib.
fEicturing evidence for this cause are to be looked at with
distrust.
As to the many witnesses produced to prove that bog-
head coal is a '^ shale ;" that all cannel coals are shales ;
that Eimmeridge shale is coal ; that Leeswood curly cannel
coal is not a shale, although other cannel coals are shales ;
that the manufacture of offensive and unmarketable oils
from Kimmeridge shales was a manufacture of Young's
oils, and an anticipation of his invention ; that the tar and
coke ovens used in South Wales to produce a coarse tarry
oil} used for lubricating the wheels of tram-waggons, was
an anticipation of Young's lubricating paraffine oils — all
the immense mass of evidence which the defendants have
laid' before the Court on these various points failed to
produce any serious effect upon my mind towards establish-
ing the case of the defendants, and a reconsideration of it
satisfies me of its unimportance.
On the question of temperature, as described in Young's
specification, there has been in the evidence and arguments
on behalf of the defendants some confusion between the
heat applied to the outside of the retort and the heat of
the materials within. There has been a great conflict of
evidence, but the result of a careful review and estimate
of the evidence leaves my mind satisfied that Young's
specification has given the proper directions, and described
the proper gradation and limit of the temperature, up to
and not exceeding a low red heat on the outside of the
retort, for producing paraffine oils and paraffine in the
greatest abundance which has yet been obtained.
On the question of infringement, as well as with refer-
ence to the validity of the patent, the defendants have
laboured to show by evidence that a temperature lower
than a low red heat, and therefore not according to
610
CASES IN CHANGERT.
.1864.
YOUVG
V,
Fbbnib.
Judgment,
Toang's specification, is that at which they have worked,
and is the best temperature for producing paraffine oik
and paraffine in the greatest quantity and of the best
quality. Their evidence has entirely failed to establish
the fact that they have not used for their manufacture the
same class of coals and the same gradation and limit of
temperature which Young describes, or that a gradation
and limit of temperature lower than Young's is the best
The evidence remains unshaken on this point, and on the
other main points of the case the evidence of the plaintiff's
witnesses has been clear and strong, and greatly outweighs
that of the defendants.
In dealing with the case it has seemed to me better to
direct attention to what has been said by the witnesses of
the defendants.
One of these, Dr. Taylor, admitted that there are many
chemical substances produced, not in abundance, but in
small quantities, which, if they could be produced in large
quantities, so as to be merchantable commodities, would
be highly valuable. This is the proposition which seems
to be at the root of the plaintiff's case. In the case of
monopolies. Lord Coke says (a) that all monopoly patents
were void both by common law and the statute, unless they
were granted to the introducer of a new trade or engine.
The words of the statute of James the First are, *' The
sole working or vending of any manner of new manufac-
tures within this realm, to the true and first inventor and
inventors of such manufactures."
Mr. Femie, one of the defendants, has adduced in evi-
dence a passage firom the work of an eminent American
chemist. Dr. Antiselli who holds an important position in
the Patent Office of the United States of America. It
appears that the plaintiff Young has obtained a patent in
the United States for his manufiusture. This book contains
a short history of the manufecture of paraffine oils and
(a) U Keports, 84,
Judgment,
CASES IN CHiNCERT. 611
paraffine; and it gives the following extract from a pub* 1B64.
lieation by Reiehenbach in 1854 : — *' So remained paraf« youms
fine until this hoar^ a beautiful item in the collection of psrmib.
chemical preparations, but it has never escaped from the
rooms of the scientific man." Something, therefore, re-
mained to be ascertained, in order to the useful application
of this article for economical and commercial purposes.
This illustrates the important distinction between the dis-
coveries of the merely scientific chemist and of the practi-
cal manu&cturer who invents the means of producing in
abundance, suitable for economical and commercial pur-
poses) that which previously existed as a beautiful item in
the cabinets of men of science.
What the law looks to is the inventor and discoverer
who finds out and introduces a manu&cture which supplies
the market for useful and economical purposes with an
article which was previously little more than the ornament
of a museum.
It has been established to my satisfaction, by the evi-
dence in this cause, that the plaintiff Young is an inventor
of this class, and that his patent is entitled to the protec-
tion of the law. I find that he has ascertained, by a
course of laborious experiments, a particular class of
materials among many, and a particular process among
many, which has enabled him to create and introduce to
the public a useful manufacture^ which amply supplies the
market with that which, until the use of the materials, and
process, and temperature indicated by him, had never been
supplied for commercial purposes. At the date of his
patent something remained to be ascertained which was
necessary for the useful application of the chemical dis*
covery of paraffine and paraffine oils. This brings it
within the principle stated by the Lord Chancellor in the
late case of Bill v. Evans,
The manu&cture, with the materials and process
indicated by him^ according to the sense in which I
understand the word "manu&cture" to be used in the
612
CASES IN CHANCERY.
1864.
Young
V.
Fbrnib.
Judgment,
statute, was a new manufacture, not in use at the date of
his patent.
The principle upon which the present case should he
decided is, to my mind, so clear that it is unnecessary to
examine the cases cited by the defendants' counsel. In-
ventions in mechanics are as widely different from inventions
in economical chemistry as the laws and operations of
mechanical forces differ from the laws of chemical affinities^
and the results of analysis and experiment in the compara-
tively infant science of chemistry, with its boundless field
of undiscovered laws and undiscovered substances. This
observation, as applied to reported cases, will strike the
mind of every lawyer who has even a slight elementary
knowledge of both sciences. But if it had been necessary
to examine the authorities, there are to be found in them
some propositions as to what amounts to a publication^ and
whether the use of a lock of peculiar and improved con-
struction upon a gate is notice to the public of the nature
of the improvement, which would perhaps deserve
serious consideration. It is not, I think, the habit of
mankind to go about examining the construction of the
locks on their neighbours' doors or gates. Even the few
men endowed with an honest curiosity in examining
mechanical inventions would probably not be anxious to
be found taking models of their neighbours' locks, or
prying into the exact construction of fastenings intended
to protect private property against the whole body of the
public.
But whatever may be the correct view of the law on
that subject, the principle which seems to me to govern
the present case is broad and clear. Twice already has
the validity of this patent been established before tribunals
of high authority — first, before the Lord Chief Justice of
England and an English jury; next, before the Lord
President of the Court of Session in Scotland and a Scotch
jury. All the most important parts of the evidence before
CASES IN CHANCERY.
613
me were laid before these tribunals. I recognise in the
Lord President's charge to the jury a just view of the law.
If my own mind had not been well satisfied upon it, I
should have hesitated long before I ventured to dissent
from these two decisions.
The conclusion is, that I find in favour of the plaintifis
upon all the four issues, and there must be a decree in
&vour of the plaintiff, with costs to be taxed and paid by
the defendants.
His Honour subsequently directed an account and inquiry
in the usual terms.
1864*
Jitdgmcnt,
EDWARDS-WOOD v. BALDWIN.
JL HIS was a motion for an injunction to restrain an
action at law which had been commenced on a bond,
dated the 19th of December, 1862.
The bill alleged that the plalntifi; William Edwards-
Wood, being the owner of large estates near Warwick,
in the year 1856 commenced making various im-
provements on his property, and, having let his resi-
dence, went to reside at the hotel kept by the defen-
dant, Leonard Baldwin, at Warwick, and continued to
reside there until the month of March, 1862. During that
period the plaintiff was often absent from the hotel, and
his servant often remained there to superintend the works
which were in progress upon the estates^ and the defen-
dant, as the plaintiff alleged, firequently paid money for
or on account of the plaintiff for wages, rates, and other
matters, and at various other times made advances of
money to the plaintiff, who, as he alleged^ made advances
VOL. IV. s Q
1863.
Vec, 3.
On a bill by
the plaintiff,
who while
lodging at an
hotel, and
Beriously
ill, executed a
bond to the
landlord for
1000/. payable
at six months'
date, to secure
moneys paid
and advanced
for the plaintiff
for hotel
charges, the
landlord
undertaking
to rectify all
errors in the
accounts, the
Court
restrained an
action at law
on the bond,
the plaintiff
giYingjudg-
ment for the
amount of the
claim.
614
CASES IN CHANCERY.
£dwasd8-
Wood
V.
Uai.dwin.
S/nfrment,
and payments to the defendant by cheques and otherwise
to the amount of 800/. and upwards.
In December^ 1862, the plaintiff was sufferin^if under
acute inflammation of the lungs^ which confined him to his
bed for twelve weeks, and being in a dangerous state and not
expected to live, his medidal man gave strict orders that he
should not be disturbed. Notwithstanding this, on the 19th
of December, as the plaintiff alleged, the plaintiff's servant
came into plaintiff's bedroom and told him that the defen-
dant (Baldwin) and Mr. Smith, his solicitor's clerk, desired
to see him. They were admitted, and Mr. Smith immedi-
ately said he had come relative to the defendant's account,
that the defendant had no wish to put the plaintiff to any
inconvenience} but that he (Smith) had arranged to get
the defendant some pecuniary accommodation, and to
enable him to carry that out he had brought with him a
bond for 1000/.^ payable in three months. The plaintiff
could only speak in a whisper, but he objected to the
shortness of the period. Upon this Smith said he would
make the bond for six months and for 1000/., but that
Baldwin should give to the plaintiff a memorandum^ so
that the bond should stand as a security for so much as
should be found due on the delivery of Baldwin's cash
accounts, which Smith promised should be made out
forthwith and delivered to the plaintiff. Mr. Smith
added that the plaintiff should have free access to the
defendant's books to satisfy him of what was the balance
really due. The plaintiff then signed the document pre-
sented to him by Smith, and Smith wrote and gave to the
plaintiff a memorandum, signed by the defendantj as
follows : —
'' 19th December, 1862.
'' Mr. William Edwards-Wood having this day given
me a bond to settle all accounts which I have against him,
CASES IN CHANCERY.
I promise to rectify any error which may be foand in such
accoontSi if any.
""Leokabd Baldytin/'
615
Wood
It appeared from the evidence that no debtor and ere- :stntemrnt.
ditor account was rendered by the defendant, but in
January the defendant's solicitor wrote demanding pay-
ment of the amount secured by the bond, and the plain-
tiff not having replied to the communication, the defen-
dant's solicitor sent a second and more peremptory letter
demanding payment of the principal and interest.
The plaintiff having promised a speedy settlement, and
that the account should be investigated immediately, went
to Warwick on the 30th June, and saw the defendant,
but was not permitted to see the accounts.
On the 7th July, in reference to the plaintiff's claim to
see the accounts, the defendant wrote as follows : —
''You have the bills in your possession. I cannot
therefore allow my books to be inspected without just
cause."
The plaintiff again went to Warwick to inspect the
books, but without success.
On the 11th July, 1863, the defendant commenced an
action against the plaintiff for the amount due and interest
at five per cent.
The bill prayed that an account might be taken of all
sums due from the plaintiff to the defendant, and of all
sums paid and advanced by the defendant to or on account
of the plaintiff, and of all sums paid and advanced by the
plaintiff to or on account of the defendant^ and that the
balance due on such several accounts might be ascertained,
the plaintiff being ready and willing to pay any balance
which should be found due from him to the defendant.
The bill fiirther prayed that the bond might stand as a
s 8 2
616
CASES IN CHANCERY.
1863.
Statement.
security for the amount of such balance as might be found
due, and for an injunction to restrain the farther prose-
cution of the action.
The defendant in his affidavit denied that the plaintiff
had ever made any advance of money to him, and said
the only sums which he had received were in payment of
accounts rendered. He denied that it had been agreed
that the bond should stand only as a security for so much
as should be found due on delivery of his cash accounts,
and he alleged that at the interview in December, 1862,
the plaintiff admitted that he had received the accounts,
but had not had time to look over them, though be had
no doubt they were correct, and that he must ask the
defendant to give him a memorandum that if he (the
plaintiff) found any error it should be rectified. The
defendant further deposed that he thereupon gave the
plaintiff the memorandum above mentioned. He also
stated that fully detailed accounts had been delivered to
the plaintiff prior to the date of the bond, amounting to
1025/. Ss. 7d., and that it was understood that there
should be two other small accounts furnished, amounting
to 18Z. 198. 2d., making together the sum of 10442. 2s. 9d.
He deposed further that at the time the bond was given
he (the defendant) held bills of exchange given by the
plaintiff for 170/. and 300/. which had been dishonoured,
and one for 600/. which had not arrived at maturity,
making together 1070/., all of which had been given up
when the bond was executed. The defendant deposed
that the plaintiff was indebted to him in the sum of 1048/.}
with interest on the bond, and that such sum was due for
hotel bills extending firom the 4th February, 1859, to the
6th October, 1862, and for 270/. cash lent and advanced
to the plaintiff since the 4th February, 1859.
ArgurMnt.
Mr. Molina and Mr. J. H. Taylor j for the motion, con-
tended that there was here, on the defendant's own showing
CASES IN GHANC£BY.
617
such a complicated accoant as coald only be properly
taken in this Court.
Mr, Greene and Mr. B. Hawkins opposed the motion
and contended that there was no equity on which this bill
could be sustained. The claim of the defendant was a
simple money demand, viz., a claim for the amount
of the plaintiff's bill for hotel charges and for money
lent. It was a common money demand, and if this bill
could be supported every tradesman might be dragged into
a Chancery suit for requiring payment of his bill, or, if he
were so inclined, might involve any customer in a Chan-
cery suit to obtain payment. There was no pretence for
any proceedings in this court ; there was nothing com-
plicated in the nature of the transaction; there was
nothing fiduciary in the relation of the parties, no
question of agency — in short, there was no motive for this
suit but to delay payment of a just demand.
They cited Phillips v. Phillips (a) and Smith v. Le^
veauxQ}),
The Vice-Chancellob : —
The injunction asked for must be granted. This is not
a case where the receipts and payments are all on one
side, for the plaintiff has received moneys from the defen-
dant, and the defendant from the plaintiff, and the defen-
dant has received not only moneys, but also bills of
exchange. The observations made by Lord Justice
Turner (overruling Vice-Cbancellor Wood) in the case of
Phillips V. Phillips certainly do not appear quite recon-
cilable with decisions in other cases. But, even according
to the view taken by the Lords Justices in the recent case
of Smith V. LeveauXy nothing was said to cover a case like
the present, where the defendant in liis own affidavit has
1863.
Bdwardb-
WOOD
r.
Baldwin.
A rgument*
Judgment.
(a) 9 Hare, 471.
(b) 1 Hem. k M. 123, reversed
on appeal ; 2 De G., J., and F. 1.
618
CASES IN CHANCERY.
18C3.
Edwards-
Woni)
V,
Baldwin.
Judgment.
introiluced a long and confused statement of complicated
transactions in which there were receipts and payments
upon both sides^ as to which the defendant does not say
that any vouchers were produced and signed to show that
an account had been settled and signed between the
parties.
It is also a very unfavourable feature in the case of the
defendant that, contemporaneously with the bond given by
the plaintiff, a memorandum was signed by the defendant
and given to the plaintiff, the language of which, though
equivocal, amounts to nothing more than an assurance
that the bond was given as a security, and contemplated a
further investigation of the accounts. The natural con-
struction of the language of that memorandum is, that
the bond was certainly given as a security for what should
be found due after an investigation of the accounts, in
which errors might appear, and when the balance had
been adjusted for which it should stand as a security.
Even if the langu^e does not bear that construction, it is
impossible to say that the memorandum did not contem-
plate that an opportunity should be given to the plaintiff
to point out any errors in the account, no vouchers having
been at any time given by the defendant, but merely bills
of the current expenses of the plaintiff at his hotel, which
the defendant had offered to give to the plaintiff.
All that is not enough to deprive the plaintiff of that
to which upon the transactions on both sides he is entitled,
namely, an investigation of the accounts. As to the ques-
tion of jurisdiction, nothing has yet been done by any Act
of Parlianient to take away from this Court its inherent
jurisdiction to deal with such a case as this. The plaintiff
is entitled to an injunction, but he must give judgment for
the whole amount claimed by the defendant, and the
defendant must submit to such order as this Court may
direct,
T
CASES IN CHANCERY. 619
1863.
CAEEW V. COOPER. ^'^
Dec. 5 $• 8.
HIS was a motion on behalf of the defendant to dis- The statutes
of the 46 Geo.
solve an injunction which had been granted by the Court, s, c. 68, & 47
on the application of the plaintiff, the executor of a c.25%o'not
Major Master, restraining the defendant from receiving rfon/i^nted
his pension and annuity. ^y **»« &o-
f. , ^ , -,, _ ^ n , . ▼ernment of
The defendant, Charles Cooper, was formerly a major India to miU-
in the service of the East India Company, and under the ^loywTrn
Transfer Act (21 & 22 Vict e. 106), which was passed in ^'0/^0^116
1858, became an officer in the service of Her Majesty. Indian
On the 31st December, 1861, he retired on his colonel's Therefore^n
half-pay, which consisted of a pension of 450/. per annum J^'offi^rin^^
(less 40/. deducted for the military fond), and of an annuity ***® service of
of 200/. per annum, payable under an order made by the India Com-
Secretary of State for India in council, which was pub- Snder the°'
lished in the Gazette for the 12th August, 1857. The i^s^becam;
order directed that certain annuities, at the rates therein » colonel in
mentioned, be offered to lieutenant-colonels and majors, service and
as they stood regimentally in the cavalry and infantry of Jl^nlion^of *"*
the three presidencies, in addition to the pensions to which 460^.. and an
they might be entitled under the regulations of the service. 2002. per
On the defendant retiring his commission was granted afterwards
to him in pursuance of the statute (25 & 26 Vict. c. 4) l^^^^^^'""
intituled "An Act to enable Her Majesty to issue »ecurityfora
•^ ^ debt— Held,
Commissions/' and was as follows : — valid.
" Victoria, by the grace of God, &c. To our trusty and
well-beloved Charles Cooper, Esq., greeting. We, reposing
especial trust in your loyalty, &c., do, by these presents,
constitute and appoint you to have the honorary rank of
colonel in our army from the 31st December, 1861, and
we do hereby give and grant you foil power and authority
620
CASES IN GHANCERF.
18G3.
Carbw
r.
Cooper.
Statement,
to command and take year rank accordingly, &c. Given
at our Court at St. James's, &c., this 8th day of June,
1862."
Prior to April, 1862, an action had been brought
against Colonel Cooper by Major W. Master, and a ver-
dict recovered against him for a sum of 2813/. 10«. 8d.
for principal moneys and costs.
On the 30th April, 1862^ Colonel Cooper assigned to
Major Master the annual sum of 100/., part of the said
pension of 450/. (less 40/.) and annuity of 200/., for a
period of eleven years, if the assignor should so long live.
The said indenture also contained a power of attorney to
Major Master, to use the name of Colonel Cooper, and in
his name to demand, sue for, and give receipts and dis-
charges for the said annual sum of 100/. in quarterly pay-
ments.
Notice of this assignment was on the 28th May, 1862,
served on the Secretary of State for India, in reply to
which notice the following letter was received : —
•andia Office, S.W., 17th June, 1862.
" Gentlemen, — ^I am directed by the Secretary of State
for India in council to acquaint you, with reference to the
notice of assignment by Colonel C. Cooper of a portion
of his pension to Major Whalley Master, lodged by you
at this office, that assignments of military pensions are
not recognised by this department, but that these pensions
are paid either to the officers to whom they were granted,
or to their duly constituted attorneys.
" I am, gentlemen, your obedient servant,
^* J. Cosmo Meltill."
On the 12th October, 1862, Major Master died, having
appointed the plaintiff his executor.
An instalment of 25/. fell due in February, 1863, and
CASES IN CHANCERY.
621
not being paid, the plaintiff filed this bill for the purpose
of enforcing his security and for an injunction to restrain
the defendant from receiving the pension.
The defendant on the 18th July last was adjudicated
a bankrupt, and the official assignee, Mr. H. H. Cannan,
was appointed official assignee and was subsequently
made a defendant. No creditors^ assignee had been
appointed. On the 15th of October he obtained his
discharge.
When the motion came on, on the 5th, the official
assignee had not been served, and it stood over to allow
such service to be made.
1863.
Cahbw
o.
COOPBR.
Statement,
Mr. Roxburgh now moved to dissolve the injunction.
It had been settled by a series of decisions in this court
that by the 47 Geo. 3^ sess. 2, c. 25, s. 4 (which was
identical with the 46 Geo. 3, c. 69, s. 7), an assignment
of a military pension was absolutely null and void : Lloyd
v. Cheethamia). It was contended that this Act was
confined to pensions of officers in the Queen's service, and
that the defendant did not come within that class, and
Heald v. Hay (6) was relied on, but that very case pointed
out the distinction. In Heald v. Hay the officer was not
in the Queen's service, and the pension had been granted
by the East India Company before the passing of the
21 & 22 Vict. c. 106, but in the present case before this
pension was granted Colonel Cooper became an officer in
Her Majesty's service, and as such became entitled to his
retiring pension. It was submitted, therefore, that this
case was within the authority of Lloyd v. Cheetham, that
the distinction it had been attempted to take between the
two cases failed, and that the injunction must be dissolved.
The retiring pension of an Indian officer does not pass
to his assignees in bankruptcy. Gibson v. The East India
Company (c), Statutes 21 & 22 Vict. c. 106, ss. 39, 43,
(a) 3 Giff. 171. (b) 3 Giff. 407. (c) o Bus- (N. C.) 002.
Art/ument,
622
1868.
Cahbw
V.
COOPBR.
ArgumenU
Judgment,
CASES IN CHANCERY.
56, 58, and 24 & 25 Vict. c. 134, s. 134, were also
referred to.
Mr. MoKfiB and Mr. Bagahawe for the plaintiff and
Mr. H. Stevens for a second incumbrancer were not
called on.
The Vicb-Chancellor : —
The two sections of the Acts of Parliament which baye
been referred to — the 7th section of the 46 Geo. 3, e. 69,
and the 4th section of the 47 Geo. 3, c. 25 — are peremp-
tory enactments annulling assignments of military pay
and military pensions^ upon the ground of public policy.
So highly does the law estimate the principle of public policy
upon which these sections proceed that even at common law
it has been decided [Flarty v. Odium (a), and Lidderdak
V. The Duke of Montrose (b)] that, independently of these
enactments, an assignment of the half-pay of a military
officer is invalid^ and can confer no right whatever upon the
assignee. That has been decided on grounds of public policy,
the payment being made to retain the services of a person
who has been in the employment of the Government, but
who has ceased to be actively employed in its service.
If I had discovered any ground tor importing these
enactments, or for carrying this principle of law so far as
to reach assignments of all pensions and pay, including
the pension and pay now in question, I should certainly
have hesitated very long before I did anything to sanction
the validity of any assignment of the pay or pension of
any officer in the service of the Crown.
But the question here is, whether or not the pay and
pension which the defendant Colonel Cooper claims are
pay and pension of the kind to which these enactments
apply. I am of opinion that they are not within these
enactments. The pay and pension in question proceed
not from a grant of the Crown, or of money to be paid
(a) 3 T. R. 681. (h) 4 T. R. 2i8.
CASES IN CHANCfiRT.
623
throogh the office of the Paymaster-General, or of any-
thing which is included in the army estimates, or which is
under the control of Parliament in that shape. They
proceed from funds of an entirely difierent character.
By the General East India Act of 1858 all the
revenues and property of the East India Company were
taken out of the control of that company^ and were placed,
not upon the same footing as the revenues of England,
but upon an entirely different footing. That Act of Par-
liament, sec. 39, enacts that they are to be vested in Her
Majesty, not for the purposes of the general government
of this country, but to be disposed of, subject to the pro-
visions of the Act^ for the purposes of the government of
India. That is the special purpose of this enactment, and
the 39th section of the Act of 1858 is followed by a series
of enactments, commencing with the 41st and ending with
the 55th, all of which relate to the revenues of India. So
far from the funds out of which this pension is granted
and all the funds which are under the control of the
Indian Council for the purposes of the government of
India being regulated by Parliament, the parliamentaiy
control is only preserved by the 53rd section, which
requires that the government of India shall lay before
Parliament in every session an account of the way in
which they have employed their revenues for the purposes
of the government of India. It seems plain that the
statutes of the 46 Geo. 3, c. 59, and the 47 Geo. 3, c. 25,
do not apply in any degree to pay or pensions granted by
the government of India, or to pay or pensions granted to
any military person whose conduct is regulated by the
government of India, or who is employed in services in
India for the purposes of the Indian government. It is
very true that the Act of 1858 was passed for purposes
entirely different from financial purposes ; that it was
passed to preserve a direct control in the Crown over the
oflBcers employed in the army of India, and to regulate
18«.
GAEBir
COOPBB.
Judgwunt,
624
GASE3 IN CHANCERY.
1863.
Careav
V.
COOPBR.
Judgment,
the discipline of the Indian army under the power of die
Crown as a superintending power, instead of under the
East India Company as a superintending power — that is
to say, the Act makes every officer in the Indian army
hold his commission from the Queen. But those officers
of the Indian army who hold their commissions firom the
Queen as this gentleman does, as appears from the
commission, are not paid by the Crown in the sense
in which the British army is said to be paid by the
Crown, which receives the money voted by Parliament
through the army estimates. The Acts of the 46 Geo. 3,
c. 69, and the 47 Geo. 3, c. 25, seem to apply only to paj
received from the Crown out of the revenue voted by Par-
liament. It was thought necessary, in order to enforce
that principle of public policy to which I have alluded,
that Parliament should peremptorily enact the nullity of
all assignments of the half-pay and pensions of officers
who were in the service of the Crown, as contemplated by
those two Acts of Parliament It might have been a
very wise thing to import these enactments into the Act of
1858, for the regulation of the Indian army. But I find
that Parliament^ although speaking in 1858 decidedly as
to that which is properly the British army, and not the
army of India, and as to moneys which are paid under
the direct control and by the direct vote of Parliament, is
yet silent as to any such enactments as those above men-
tioned, and that this principle of public policy is not
embodied in an express enactment. I can only consider,
therefore, that^ probably for wise reasons, it was not
thought proper or necessary to apply these enactments to
officers who derive their pay and pensions from the
revenues of the government of India, and who are not, like
the British army, paid through the medium of the Pay-
master-General. Therefore I cannot see that the East
India Act of 1 858, or the circumstance of this gentle-
man's commission being granted by the authorities at
GASES IN GHANGERT.
625
the Horse Guards and signed on behalf of the Queen,
and not by the East Indian authorities, affects the ques-
tion of the assignment by him of his pension and
annuity. That question must be decided by reference
to the funds out of which it comes, and whether Par-
liament has imposed any fetters upon the alienation of
any pension and annuity so received. I find no warrant
for saying that an instrument which contains such a
power of attorney is hull and void under the opera-
tion of those two sections of the two Acts of Geo. 3.
Mr. Melvill has stated that it is mentioned in the
order 905 of 1861 that these payments are in respect of
these two items, "retired pay 2 5«. per diem, and special
annuity of 200/." The expression *' special annuity" is not
to be found in the Acts of 46 & 47 Geo. 3 which have
been referred to. This is only a small circumstance, but
it shows that the pension and annuity now in question are
not regulated by the 46 & 47 Geo. 3, and do not proceed
from such a source as to be within the operation of those
two Acts of Parliament. I cannot therefore dissolve this
injunction, and I must refuse the motion. The costs to
be costs in the cause.
1863.
Carbw
V.
Cooper.
Mr. Bacon appeared for Mr, Cannan, the oflScial
assignee, and asked for the costs of his appearing.
[The Vice-Chancellor. — I do not think there has been
that diligence on the part of the official assignee to entitle
him to his costs.]
626
CASES IN CHANCERY.
1863.
Nov. 11.
Where a
debtor gave
authority by
parol to his
creditor to
take certain
goods, passing
by delivery,
and sell them,
and oat of the
proceeds to
retain his
deht-'Held,
that the
creditor
ag^nst the
administrator
of the debtor .
had a lien on
such gfoods to
the extent of
his claim.
GURNELL V. GARDNER-
1 HIS bill was filed by the plaintiff, a creditor of Joseph
Gledhill, deceased, praying for a declaration that be was
entitled to certain wool and the proceeds thereof as against
the defendants, and was entitled to retain the proceeds for
his own benefit. The bill also asked for an injunction to
restrain an action which had been commenced by the
defendants against the plaintiff and for the costs.
The bill alleged that Joseph Gledhill, late of Ashby, in
the county of Lincoln, cattle dealer, became indebted to
the plaintiff, George Gurnell, a farmer, in the sum of
21SL 105., on account of the proceeds of certain cattle and
stock which he had sold for and on behalf of the plain-
tiff, and also for money lent to him by the plaintiff. The
said Joseph Gledhill previously to July, 1862, had pur-
chased of a Mr. Bradley certain wool, for which he paid
the sum of 140Z. in part payment of the purchase-money,
leaving a balance due to Bradley. The wool was allowed
to remain on Bradley's premises. On the 27th July,
1862, Joseph Gledhill, being then about to leave home to
attend a cattle fair, requested the plaintiff during his
absence to superintend the weighing, packing, and delivery
of the above-mentioned wool, which the plaintiff agreed
to do. The balance due to Bradley was 75/., and the
plaintiff informed Bradley that the wool was going to be
sold, and that he should then receive such balance.
The wool was forwarded to Doncaster by a barge
belonging to the defendant John Gardner, who was a
wharfinger, and was landed at his wharf. The plaintiff
had employed Joseph Gledhill to sell some cattle for him
at the above-mentioned fair, which Gledhill accordingly
did, and received the proceeds of the sale.
CASES IN CHANCERY.
62?
Paragraph 9 of the bill was as follows: — <* On the morn-
ing of Saturday, the 2nd August, 1862, the plaintiff had
an interview with the said Joseph Gledhill, who had then
only just returned from the said fidr in Yorkshire, at his
residence, and the said Joseph Gledhill informed the
plaintiff (as the facts were) that he had sold the plaintiff's
said beasts, and that one Cliatterton had got his money
(meaning thereby that he, Joseph Gledhill, had paid
away the money produced by the sale of the plaintiff's
cattle to Chatterton); and the said Joseph Gledhill, being
indebted to the plaintiff as aforesaid, and in consideration
of the said debt of 2182. 10^., and for the purpose of
securing to the plaintiff the payment of part of such debt,
and for the purpose and with the intention of assigning
and making over the said wool to the plaintiff, and of
vesting such wool in the plaintiff, then said to the plaintiff,
' There is the wool which has gone to Doncaster. Go and
sell that wool, pay Bradley the balance due to him on
such wool, and keep the remainder yourself.'"
At the time of this interview the said Joseph Gledhill
was ill in bed, but, as the bill alleged, he knew perfectly
well what he was doing. The plaintiff did not see
Joseph Gledhill again, as he died in the night of the 2nd
August, 1862. On the following Monday, the 4th
August, the plaintiff went to Joseph GledhUl's residence,
and there met Bradley and one of Joseph Gledhill's bro-
thers, who told him that he was not to sell the wool for
the present The plaintiff, however, and Bradley went
to the defendant Gardner's wharf at Doncaster and claimed
the wool. They did not then see the defendant Gardner,
but they were then informed that a brother of Joseph
Gledhill had given directions to Gardner to keep the wool
and not to let it go out of his possession.
On the 5th August the plaintiff and Bradley again
went to the wharf of the defendant Gardner, took pos-
session of the wool, and sold it at the wool fair at Doncas-
1863.
GuavBLL
V,
Gakditbr.
statement.
628
CASES IN CHANCERY.
1863.
GURNBLL
V,
Gardner.
Statement,
ter for 213Z. On the same day the plaintiff paid to Bradley
the balance of 75/. which was due to him, and, after pay-
ing the freight and wharfage, kept the balance in part
satisfaction of the debt due to him by Joseph Gledhill.
It appeared that Joseph Gledhill died intestate^ and on
the 11th November, 1862, letters of administration were
granted to his brothers, John and James Gledhill, the
present defendants. They required the plaintiff to pay
oyer to them the amount received by him in respect of the
wool, which he declined to do.
In March last an action was commenced against the
plaintiff by the defendant Gardner, who held the proceeds,
as stakeholder^ to recover the sum of 216/. 48. for 94^
tods of wool.
On the 15th April the plaintiff filed this bill as assignee
in equity for value of the wool, and claimed to be entitled
to retain the moneys produced by the sale thereof.
The plaintiff agreed to give judgment in the sum of
218/. 4«., but on condition that no execution should issue
on such judgment until the 8th May, 1863^ so that the
rights of all the parties should be determined by this Court.
On the 24th April, 1863, Mr. Baron Bramwell made
the following order: —
" Upon hearing the attorneys or agents on both sides, and
by consent, I do order that upon payment of 218/. 4«., being
the debt and damages due from the defendant to the plaintiff
for which this action is brought, being 2/. for damages on the
count for trespass, and 216/. 4«. on the money counts and
costs to be taxed and paid on the 8th May next, the plain-
tiff being at liberty to sign judgment for the said debt and
damages and costs forthwith, all further proceedings in
this cause be stayed; and I fiirther order that, in case
default be made in payment as aforesaid, the plaintiff shall
be at liberty to issue execution for the whole amount
remaining unpaid at the time of such default, with costs
CASES IN CHANCERY.
of execution, sheriffi' poundage, of&cers' fees^ and all
other incidental expenses, whether by fi. fa. or ca. «a,"
On the 24th April, 1863, the defendant Gardner's
solicitor sent to the plaintiff's solicitors a copy of the
above order, with the following letter : —
629
18G3.
OURNBLL
Gardnkr.
Sttitement.
*' Gardner y. Gurnell. — Enclosed I send you copy order
to stay herein, which it is expressly understood shall not
in any way prejudice the rights of either party in the suit
in Chancery."
It was admitted that nothing was due to the defendant
J. Gardner for freight or wharfage, or otherwise, in
respect of the said wool. The defendants John and
James Gledhill claimed to be entitled to the proceeds, as
personal representatives of Joseph Gledhill, deceased,
and the action at law was brought by the defendant
Gardner as a mere stakeholder^ at their instigation and
request.
The defendant Gardner on the 22nd April, 1863,
demurred to the plaintiff's original bill (which was filed
against him alone), for want of equity, on the ground
that John and James Gledhill ought to have been made
parties.
The plaintiff submitted to the demurrer, and obtained
the common order to amend. The defendant Gardner
had signed judgment in the action, and threatened to issue
execution upon the judgment on the 8th May.
Certain pencil memoranda as to the weight, &c., of the
wool, and purporting to give authority to the plaintiff to
take it, came out of the plaintiff's possession, and the
plaintiff in his afiidavit said they were given to him by
the intestate at the interview, but this was disputed,
VOL. IV. T T
630
CASES IN CHANCERY.
1863.
GURNBLL
V.
Gardiisr.
Arguments
Jtidgnunt,
Mr. Malins and Mr. Fielding Nalder opened the case
for the plaintiff, but were stopped by the Court.
Mr. Bacon (with whom were Mr. C. T. Simpson and
Mr. Sterling), for the defendants, contended that the
alleged assignment by parol from Joseph Gledhill to the
plaintiff was inoperative. Not being accompanied by de-
livery of possession, it would have passed for nothing even
had Joseph Gledhill been living. At most it was an autho-
rity to do something which was revoked by his death.
This was assuming the case made out by evidence, but
the only evidence was the plaintiff's oath in his own
favour.
They cited Lepard v. Vernon (a) and Watson v.
King (i).
The Vice-Chancelloe: —
Upon the question of fact I think the plaintiff^ on the
weight of evidence, must be considered as having proved
what is alleged in the ninth paragraph of his bill. But
the important question in this case is as to the law. I
should have considered that an equitable lien can be
created by parol, and, subject to what has been said upon
the case of Lepard v. Vernon, it seems to me that if what
the intestate said to the plaintiff had been put into writing,
and signed by the intestate, it would have been a per-
fectly valid equitable assignment, and it would have
created an equitable lien wholly irrevocable by the death
of Joseph Gledhill.
What was decided in the case of Lepard v. Vernon was
this, that where there is a bare power of attorney to
receive a debt not accompanying any assignment of it,
although given by a written instrument under the hand
(a) 2Vce. &B.68.
(b) 4t Campb. 272.
CASES IN CHANCfiBT.
681
and seal of the person giving it, it is no more than a
naked authority, and that aathority is clearly revoked by
death. The authority there given cannot be said to have
been by parol. I asked whether Sir W. Grant, in the
case of Lepard v. Vermm, said anything to show that if
the power had embodied a declaration that it was given to
enable the creditors to apply the money to their debt (of
which there was parol evidence in the case) it would not
have operated as against the general creditors of the
debtor, and, as I expected, the counsel for the defendants
could not say that he did. I find no warrant for departing
from the decision in Lepard v. Vernon^ nor for saying that
if what passed by parol had been incorporated into the
written instrument Sir W. Grant would not have felt
himself bound to hold that the right of the person claiming
under the power of attorney, coupled with the declaration,
would have prevailed.
In this case everything was by parol. The words are
clear ; and that, coupled with the conduct of the intestate,
amounts to the creation of a valid equitable lien. It
seems to me to be impossible to resist the plaintiff's claim
on the ground that there was nothing in writing. I know
no law which says that a valid equitable lien cannot be
created by parol, and the conclusion, if these premises be
just, is inevitable, that where all things are by parol and
associated together for the purpose of giving an authority,
where all is one transaction^ and- the power and the pur-
pose are coupled together by the same evidence, they
operate to confer a valid right which this Court is bound
to enforce. At the same time it is impossible to say that
the case is free from difficulty.
I wish it^ however^ to be understood that if what is
alleged in the 9th paragraph of the bill had been put into
writing and signed by the intestate, I think it would have
given a right to the plaintiff which the defendants, the
administrators, could not have successfully resisted. Upon
T T 2
1S63.
GURNBLL
GAHDlfBR.
Judgment,
CASES IN CHANCERY.
1868.
Judgment*
the whole, therefore, I am of opinion that the plaintiff
is entitled to a declaration that he has an equitable right
to the proceeds of the wool.
I shall make no order as to costs. The plaintiff has
established his equitable lien, but, having seized and forci-
bly taken possession of the property as against the legal
right of the person in whose custody it was placed, I can-
not give him any costs.
Nw. lOM.
Where the
pltintiff com-
posed certain
tales for the
defendant for
publication in
the London
Journal, of
which he was
the proprietor
^Held, that
the sabsequent
publication of
such tales in a
weekly sup-
plementary
number, for
sale with or
without the
current num-
ber, was a
'< publication
separately "
within the
meaning of
the 18th sec-
tion of 6 & 6
Vic. c. 46.
SMITH V. JOHNSON.
1 HIS was a motion to restrain the defendants from pub-
lishing in a supplementary number of the London Journal
certain tales, without the plaintiff's consent, or the consent
of his assigns, which the plaintiff had written for the
London JoumdL
The bill alleged that the London Journal is a weekly
periodical, consisting of tales of which a pari of one or
more appears in each number. In or about the year 1849
the plaintiff composed for the London Journal three tales,
called *• Ulrich the Saxon," « The Heiress," and « Cromwell,
or the Protector's Oath," which were comprised under the
common title of *« The Chronicles of Stanfield Hall/' and
were published in the London Journal in the same year.
On that occasion the plaintiff did not assign or relinquish
to the said proprietors of the London Journal any of the
rights which are granted or reserved to authors by law.
The defendants^ the present proprietors of the London
CASES IN CHANCERY.
633
JoumaU were now publishing weekly what they called a
supplementary number of the London Journal^ which
might be had with or without the current number of the
London Joumalj and containing each week parts of several
tales. In the supplementary number for Saturday, 27th
June, 1 863^ there was commenced a re>publication of the
tale called " Ulrich the Saxon," under the title of" ' Stan-
field Hall,' by John Frederick Smith, Esq.," and that re-
publication had been continued by the appearance of a
further part of the same tale in each succeeding supple-
mentary number. In the headings of the supplementary
number there was printed in capital letters, " A Re^issue
of John Frederick Smith's best Tales, ' Stanfield Hall,'
The plaintiff deposed that he had never given his consent
to this re-publication of these tales, but^ as he contended^
held all his rights in respect of the tales comprised under
the title of '* Stanfield Hall/' in trust for Messrs. Fetter
& Galpin, of La Belle Sauvage Yard. Those gentlemen
on the 6th November instant wrote to the defendants, re-
questing them to discontinue forthwith the re-publication
of the said tales, which, however, they refused to do. The
bill alleged that the defendant threatened and intended to
continue the re-publication of these tales in the said supple-
mentary numbers of the London JoumaL
The question was, whether the re-publication was a
separate publication within the meaning of the Oopyright
Amendment Act, 5 & 6 Vic. c. 45. Section 18 was as
follows : —
'* And be it enacted, that when any publisher or other
person shall, before or at the time of the passing of this
Act, have projected, conducted, and carried on, or shall
hereafter project, conduct, and carry on, or be the pro-
prietor of any encyclopaedia, review, magazine, periodical
work, or work published in a series of books or parts, or any
book whatsoever, and shall have employed or shall emploj
jees.
statement.
634
CASES IN CHANCERY.
1803.
Smith
V.
Johnson.
Statetiip.nt,
any persons to compose the same, or any volumes, parts,
essays, articles, or portions thereof, for publication in or as
part of the same, and such works, volumes, parts, essays,
articles, or portions shall have been or shall hereafter be
composed under such employment, on the terms that the
copyright therein shall belong to such proprietor, projector,
publisher, or conductor, and paid for by such proprietor,
projector, publisher, or conductor, the copyright in every
such encyclopsedia, review, magazine, periodical work, and
work published in a series of books or parts, and in every
volume, part, essay, article, and portion so composed and
paid for, shall be the property of such proprietor, projector,
publisher, or other conductor, who shall enjoy the same
rights as if he were the actual author thereof, and shall
have such term of copyright therein as is given to the
authors of books by this Act. Except only that in the
case of essays, articles, or portions forming part of and first
published in reviews, magazines, or other periodical works
of a like nature, after the term of twenty-eight years from
the first publication thereof respectively, the right of pub-
lishing the same in a separate form shall revert to the
author for the remainder of the term given by this Act :
provided always, that during the term of twenty -eight
years the said proprietor, projector, publisher, or conductor
shall not publish any such essay, article, or portion sepa-
rately or singly, without the consent previously obtained of
the author thereof, or his assigns."
Argument, Mr. Bacon and Mr. Westlakey for the motion, contended
that this was clearly a separate publication. It was called
a supplementary number, but was for sale singly, and was
described as a re-issue of the plaintifi^'s works.
They cited Mayhew v. MaxtoeU (a) and The Bishop of
Hereford v. Griffin (b).
(a) 1J.&H.312.
(b) 16 Sim. 190.
CASES IN CHANCERY. g35
Mr. MalinB and Mr. Speed for the defendant. 1869.
This is not a violation of copyright, because the plaintiff smith
cannot publish the stories in question himself. It is a jqhnson
mere re-publication as of the defendants' periodical^ with a —
simple difference in the order. If this motion could be
maintained this would be the necessary result, that the
proprietor of a magazine could not reprint his publication
if he varied the arrangement in any way. Such was not
the true construction of the Act, which merely prohibited
a publisher from publishing an article which had ap-
peared in his magazine out of and unconnected with
the work in which it first appeared. These defendants
were not attempting to do anything of the kind contem-
plated by the Act.
Secondly, the application came too late. The plaintiff or
his cestui que trust had lain by for a year, allowing the
defendants to make all their arrangements, and now came
forward at the last moment to harass the defendants. It
was submitted that the motion must be reiused.
The Vice-Chakcblloe : —
The proviso in the Act of Parliament which prohibits judgment.
a publication ^ separately and singly " is a proviso intended
for the benefit and protection of authors. This Court in
previous cases has, and I think wisely, construed the lan-
guage of the Act so as to afford that protection which was
clearly intended by the Legislature ; and that protection
being intended, it is the duty of this Court to give the
relief now asked. In the case cited before the Vice-Chan-
cellor of England iThe Bishop of Hereford v. Chiffin) it
was said in argument that the meaning of the proviso,
taken with the whole clause, is not to vest a copyright in
the proprietors or publishers of a periodical work, but
simply to give them a licence to use the matter for a par-
ticular purpose. That was the view adopted by the Vice-
Chancellor of England ; that was the view subsequently
636
CASES IN CHANCERY.
1863.
Smith
r.
Johnson.
Judgment,
adopted by Vice-Chancellor Wood ; and that is the view
which, upon the construction of the language of the Act,
fortified by these authorities^ I feel myself bound to take.
The first part of the clause contemplates a publication
of works, called periodical works^ in parts, and it contem-
plates the labour which authors bestow in composing
literary works which are to be published as portions of
those parts. The words '' parts and portions " occurring
in this clause are extremely significant^ and fully justify
the view which this Court has taken in previous cases.
Keeping in view this principle of construction — that the
Act of Parliament was intended to give a licence only to
the proprietors of periodical works purchasing and paying
for a literary composition to be published as a part or
portion of a periodical work — the construction of the words
in the proviso which prohibit them from publishing these
parts or portions which '^ alone " are the property of the
author — from publishing these portions ** separately and
singly," seems reasonably plain. ** Publishing separately "
must mean publishing separately from something. What
is that " publishing " which the Act of Parliament says
shall not be separately made ? It must be the publishing
of the part or portion separately from that which has been
before published. That is the view which has been pre-
viously taken, and the language in the case of Mayhew v.
Maxwell was to the effect that the defendant should be
prohibited from publishing the literary work then in ques-
tion otherwise than as part of the Christmas number of
the Welcome Guest Now, that Christmas number was a
thing called a '^part" in the Act of Parliament, which
describes these periodical works as being published in a
series of parts and numbers. The Christmas number is
part or portion of the other composition. The order of
this Court peremptorily prohibited the defendant Maxwell
from publishing it separately from the other part or num-
ber.
CASES IN CHANGBBT.
637
What has the defendant in this case done? He has
acquired, under the first clause of the Act of Parliament,
an actual property in this literary composition, which is
called "" The Stanfield HaU Tales," published in portions
or parts of a certain periodical work. The Act of Parlia-
ment says the publishers shall not publish these portions
separately from those parts for the publication of which
they have obtained a licence already. What they have
done is to print the portions already published of those
antecedent parts in what is called a supplementary number,
and which may be purchased with or without the number
in which the " portions " were originaUy published. That
is a separate publication — separate from the "parf* in
which it was originally published. To reprint in numbers
which may be had with or without the concurrent number
of the work is an act not permitted by the Legislature.
As to the argument that the plaintiff has forfeited the
right, there is scarcely any pretence for it. But it is said
that it will be more convenient to allow the publication to
go on, and keep an account of the profits. That is a
matter for the parties themselves to decide. The plaintiff^
is entitled to an injunction.
As to the other argument, that this is a publication
conjoined with other works, it cannot, in my opinion^ be
maintained.
1863.
Smith
V.
JOBVSOK.
Judgment,
638 OASES IN CHANCERT.
1804.
Feb. 28, BAYLET V. WILLIAMS.
March \y2f^y ^ <
6>&7. J[g£ ^^j ^^ gj^^ 1^^ ^{^^ plaintiff, a coalmaster at
IhicMr* Knowle, in the county of Warwick, praying that it might
necessary to be declared that two agreements, dated respectively the
of an agree- 20th and 22nd April, 1863, and the securities thereby
court must be Created on the Tipton Colliery and certain other property
SauTn^ h^' ^^ *^® plaintiff, were obtained by the defendants from the
any power plaintiff by undue, improper, and illeral pressure and
which the one f ^ , .., ' T, ' . . / ,_
party may influence, and without consideration, except forbearance to
operating on ii^stitute criminal proceedings against the plaintiff's son,
^e fears of and that the said agreements, &c^ were given as part
therefore' of an arrangement for compounding a felony. The bill
\irhfire an
agreementwas ^^^o prayed for delivery up of the said securities, and for
tte cme^Mty *^ injunction to restrain the defendants from proceeding
the plaintiff, ' at law.
under a threat
by the other The bill alleged that the .defendants were a firm of
tiff Vson* **"" bankers at Wednesbury, Staffordshire, and were also magis-
wouid, other- Unites for the county. Mr. Thursfield, who took an active part
wise, ue in*"
dieted for in the transactions impeached, is a solicitor and acting
senuMe with clerk to the magistrates at petty sessions held at Wednes-
^°Where bury. The plaintiff is a coalmaster, and also a farmer, at
the plaintiff's Knowle, and was entitled in fee simple in possession to
main and
influencing the Tipton Meadow Colliery. He began life as a working
en^nginto collier, and, being a man of little education, left his
the agreement accounts and Correspondence to the care of W. W. Wilkes,
was to relieve '
his son from who was accustomcd to answer all business letters, keep
AXDOs ure
disgrace/ and all the accounts, and make all entries in the bill book and
^mlon^of"^'" ledgers. The plaintiff himself rarely answered business
other circum- letters. For many years he kept a banking account with
coUaterai the defendants, keeping a large balance, which at the date of
himMifSenot the agreements amounted to 6600/.
°**°uJntibe '^'^^ plaintiff was sixty-seven years of age. William
agreement in Bayley, one of his adult sons, had for many years been in
business as a coal and coke merchant at West Bromwich
CASES IN GHANCERT.
where he resided with his wife and seren children, and
was assisted in his business by his brother James Bayley,
who was also adult William Bayley had for many years
purchased large quantities of coal from the plaintiff, who
had originally established him in business and had advanced
and paid large sums on his account, and large sums had
been due for some years on an account current tor coal
supplied ; and at the time of the transactions impeached by
this bill William Bayley owed and had owed for some
time to the plaintiff about 35002. for coal purchased, for
moneys lent, and for rent. The plaintiff had for some
years previously been in the habit of accepting payment
from his son in his own bills or the bills of others received
by him. Such bills were endorsed by the plaintiff to the
defendants, and discounted by them, and the proceeds
carried to the plaintiff's account. William Bayley also kept
a separate account of his own with the defendants in respect
of his own business, with which the plaintiff had nothing
to do. He had been very irregular, and in 1862 the
plaintiff had been compelled to sue him, since which time
he had had little personal communication with him ; but
all matters of business were conducted through the
plaintiff's clerk or solicitors.
At the request of William Bayley, the plaintiff, more
than two years before the transactions hereinafter referred
to, endorsed a bill of exchange or promissory note for the ac-
commodation of William Bayley, whose father-in-law, Pitt?
was originally a party to such bill, which was renewed many
times. In January, 1863, the plaintiff received from the
defendants notice of the dishonour of a bill or note of
William Bayley, and, believing it to relate to the bill or note
so endorsed, and having no notion of anything being wrong,
the plaintiff directed Wilkes, his clerk, to forward the
notice to William Bayley, which was done, and William
Bayley promised to provide for it, and a few days after
Mr. Deakin, the defendants' manager, informed the plaintiff
639
1864.
Batlbt
V.
WiLMAMS.
Statement,
640
CASES IN CHANCERY.
1864.
Batlet
V,
Williams.
Statement.
that William Bayley had taken up the bill, and the plaintiff
made no further inquiry about it, and, except so far as it
was referred to in the answer, was ignorant whether that
bill was the one endorsed by him.
The bill stated that, except as to the one bill which he
had so endorsed and the other bills received from William
Bayley in payment for coalj the plaintiff never drew,
endorsed, or accepted any bill or note, at the request or
for the accommodation of his son, or to which he was a
party. He once or twice received intimation that biUs en-
dorsed by him had been dishonoured, but he believed them
to be some of the bills received from William Bayley, and
they were always provided for without his being called upon
to pay them. The bill alleged that^ save as therein stated,
the plaintiff never authorised or sanctioned the signature of
his name to any bill of exchange or promissory note by
William Bayley, and never knew until they told him that
the defendants claimed to hold any bill or note drawn, en-
dorsed, or accepted by him for the accommodation of Wil-
liam Bayley^ or that his (plaintiff's) name had been forged.
The bill also stated that on the 17th April, 1863, as the
plaintiff was getting into a train at Wednesbury, Mr.
Deakin^ the manager of the defendants' bank, came up and
showed him a piece of paper folded up^ with what purported
to be the plaintiff's signature written upon it, and asked
him if it was his signature, to which plaintiff replied that
it was not. The train was on the point of starting, and
there was no time for further explanation. Subsequently
William Bayley came to the plaintiff and confessed that
he had forged his name to a bill, which had been discounted
by the defendants, and pressed the plaintiff not to admit or
disown the signature, but to say that the bill should be
taken up in a day or two. The plaintiff, however, refused.
The next afternoon the plaintiff and another of his sons
called on Mr. Deakin, who told them that William Bayley's
liabilities to the bank upon bills or notes endorsed with
GASES IN CHANCERY.
the plaintiff's name were serious^ bat if he would act
properly, and his fiiends would back him, all might be kept
right. The plaintiff stated that he had never given his
name to any bill except one which had run out. Deakin
then said that there were bills to the amount of between
6000/. and 7000/. bearing the plaintiff's endorsement. The
plaintiff was astounded, and said that it was out of his
power to save his son. The defendant Henry Williams
then came into the bank, and appeared to be well aware of
the facts, and stated that William Bayley ought not to
absent himself, or his business and credit would suffer, and
that he understood he had a great deal of property, enough
to cover the liability, or nearly so, and all that was required
was security. He added, '' Well, it is one of those un-
fortunate affidrs that are to be looked upon in a business
light." A meeting was then arranged at the bank. The
bill alleged that the defendants and Deakin well knew
that the alleged endorsements were forgeries by William
Bayley, and that the whole of the negotiations proceeded
on that footing, nor did the defendants insist that the
plaintiff was liable on the bills.
In pursuance of an appointment, the plaintiff, William
Bayley, and his brother T. A. Bayley went to the defendants'
bank, where they saw the defendant Philip Williams and
Mr. Deakin. What took place on this occasion was stated
in the eleventh paragraph of the bill, which was as follows : —
" A great number of promissory notes were produced^
amounting, as the defendant Philip Williams stated, to
about 6700/. The said Philip Williams asked the said
William Bayley who wrote the plaintiff's name endorsed
on the bills, and the said William Bayley replied that
he had done so himself with his own hand^ and the said
defendant then made an observation in the following words,
or to the following effect : — * The reason why I ask you is
this, you might have employed some one to do it, and the
person who did this might do more, and we should never
Statement*
642 CAS£S IN CHANGERT.
1864. be safe' And the said William Bayley then assured the
Bat LEY said defendant that he had himself written the plaintiff's
Williams, name, and the said defendant then asked the said William
statement ^^J^^Y whether he knew the consequences, and used words
to the following effect: — 'Young man, do you know this
is transportation V And the said William Bayley replied as
follows : — ' If I am transported twenty times, I will not
deny my handwriting.' Much discussion took place at
the said meeting as to the state of affairs of the said Wil-
liam Bayley. A statement of his property was prodoced
and carefully gone through and commented upon by the
defendant Philip Williams, who said it showed him to be
solvent^ but on the plaintiff stating that the said William
Bayley owed him more than 3000/. the said Philip Wil-
liams said, ^That makes him insolvent.' The plaintiff
then offered to postpone his claim on William Bayley
until the amount due to the defendants was paid, and the
said William Bayley offered to give the defendants security
on all he had. The said Philip Williams replied that
William Bayley's friends must arrange it, and that the
defendants could not meddle with his affairs, as it would
be compounding felony. The defendant Philip Williams
suggested that some one had better fetch William Bay-
ley's wife and mother-in-law, Mrs. WooUey, to give
information as to William Bayley's wife's interest in her
father's property, and that the plaintiff should wait at
Wednesbury until they arrived. The defendant Philip
Williams then left, and the said William Bayley and
Thomas Abishai Bayley fetched the wife and mother-in-
law of the said William Bayley."
The plaintiff then went to the office of Mr. Duignan,
and informed him of the result of the meeting, and
requested him to accompany him to the bank. On their
way they met Mr. H. Williams, who suggested that his
solicitor, Mr. Thursfield, should accompany him to the
bank. This was assented to, and the plaintiff's solicitor
CASES IN CHANCERY.
643
requested Mr. Thorsfield to attend. He and Mr. Duignan
walked together to the bank, and during the walk Mr.
Thursfield untruly said that the plaintiff had agreed to
guarantee payment of the notes. On their reaching the
bank Mr. Duignan told the plaintiff what Mr. Thurs-
field had just said, when the plaintiff at once repudiated
any promise to guarantee the notes.
*^ The plaintiff and his said solicitor and the said Thomas
Abishai Bayley went into the bank parlour, and there met
the said William Bayley and his wife Hannah Bayley. The
said Francis Deakin^ the defendant Henry Williams^ and
the said Mr. Thursfield shortly afterwards joined them
there, and the plaintiff's said solicitor at once stated that
the plaintiff denied having agreed to guarantee the said
bills or notes, and Mr. Thursfield said that the defendant
I^hilip Williams quite understood he had done so. A
statement of the property of the said William Bayley
was produced^ and the said Mr. Thursfield then examined
the said William Bayley as to the state of his affairs and
the amount of his liabilities, and a long discussion took
place, and it was well understood by all the persons pre-
sent^ and was admitted and taken as the basis of the dis-
cussion and proposed arrangements, that the endorsements
purporting to be made by the plaintiff upon the said bills
or notes were all forgeries by the said William Bayley^
and the total amount claimed on behalf of the defendants
as due upon such bills was stated by the said Mr. Deakin
to be about 6700/. At an early period during this discus-
sion the said Mr. Thursfield said, ' It is a very serious
matter for William Bayley,' and the defendant Henry
Williams made an observation to the same effect. The said
Mr. Duignan said, * Oh, it is a case of transportation for
life. There is no doubt about that.' The said reply was at
once made by the said Mr. Duignan, by way of acquiescence
in what he and the plaintiff then both well understood
and believed was, and what the pls^ntiff believes and
1864.
Baylbt
V.
Williams.
Statement,
644
GASES IN CHANCERY.
1864.
Batlbt
WiLLlAlCfl.
Statement,
charges in ^t yrBS, the meaning of the observation made
by the said Mr. Thnrsfield. The defendants, by their
answer^ admit the obsenration to haye been in fact made
by the said Mr. Thursfield. From the position of the
defendants, as magistrates, and of the said Mr. Thnrs-
field, as their clerk, the meaning of the observation was
clear, and was easily understood, and confirmed the plaintifi*
in the belief that unless the terms dictated by the defendants
were agreed on they would institute criminal proceedings.
And the plaintiff believed the defendants could and might
at any moment act as magistrates, and that the said Wil-
liam Bayley might be forthwith arrested on the charge of
forgery. The plaintiff stated that it was astonishing the
Qsid Francis Deakin should take such a number of notes
or bills supposed to bear the plaintiff's endorsements
without giving the plaintiff notice, or in any way commu-
nicating with him, as the defendants and the said Mr.
Deakin well knew that the plaintiff never gave or ^gned
bills of exchange or notes. The said Mr. Deakin inti-
mated that the plaintiff was to blame, for he had given
the plaintiff notice of the dishonour of one bill in January
last, and had heard nothing from him ; and the plaintiff
then at once explained that he had endorsed a promissoiy
note or bill for the said William Bayley, under the circum-
stances hereinbefore stated, and that the same has been
renewed, but had long since expired, and that he believed
the notice referred to that bill, and that he had delivered
the notice to the said William Bayley, and had heard and
thought no more of it, and that he had never endorsed,
signed, or accepted any other bill or note for the said
William Bayley."
Mr. Duignan strongly urged the plaintiff not to incur
any liability, but suggested other arrangements, which,
however, were not adopted.
^'The defendant Henry Williams, and the said Mr.
Thursfield, and the said Mr. Deakin thereupon left the
CASES IN CHANCERY. 646
room to consult privately, and shortly afterwards the said 1W4.
Mr. Tharsfield returned^ and then, in a peremptory and Batlkt
decided manner, made the following observation, or used ^wxlliaiis.
words to the following effect: — * It is of no use beating staumeni.
about the bush. We expect Mr. James Bayley (meaning
the plaintiff) to help his son out of the difficulty, and
nothing else will do.' The plaintiff's solicitor said he
would not permit the plaintiff to do' more than he had
offered, and the negotiations appeared to have closed, and
the said Mr. Thursfield and Mr. Duignan conversed for a
short time on some other subject. Mr. Duignan said,
^ Beally, Mr. Thursfield, it's too bad for you and I to be
joking whilst Mr. Bayley is in such jeopardy.' AVilliam
Bayley said, ' Oh, never mind me. I deserve to be trans-
ported.' And the said Mr. Thursfield said to him, * Per-
haps you may be yet' The wife of the said William
Bayley, in great distress of mind, then interposed and
pressed the plaintiff strongly to save her husband from
transportation.
" The plaintiff then went to the defendant Henry Williams
in the bank, and accompanied him into Mr. Deakin's
house, which communicates with the bank, and had an
interview with the defendant Henry Williams alone. In
the course of the discussion the said Henry Williams stated
it would be a lamentable thing for William Bayley (with
his seven children) to be transported, and that the amount
could no doubt be realised out of his estate, and that if the
plaintiff would guarantee it the matter might be kept
secret, and they, the defendants, would do all they could to
support him, the said William Bayley, but they would take
nothing less than the plaintiff's guarantee, and it must be
that or transportation. The plaintiff was ultimately induced,
under the pressure of the statements and circumstances
aforesaid, and in order to save his son, the said William
Bayley, from transportation, to agree to become security to
the defendants for the amount which they claimed to be
VOL. IV. u u
646
1864.
Baylbt
V.
Statement.
CASES IN CHANCERY.
due to them upon the said promissory notes upon which
the plaintiff's name and endorsements had been forged by
the said William Bayley; and it was understood and
agreed by the defendants that^ and the plaintiff understood
and belieyed that, in consideration of his agreeing to give
security, all the said promissory notes would be delivered
up to him, as they in fact afterwards were, and that no
criminal proceedings would be taken against the said
William Bayley, and that he would be secured therefrom ;
and the plaintiff agreed to become security for the amount
claimed by the defendants upon the said forged promissory
notes solely upon this understanding and under this belief
to which he was led by the statements, conduct, acts^ and
proceedings of the defendants, or one of them, and of their
said manager, Mr. Deakin ; and but for this agreement and
understanding, and the pressure aforesaid^ the plaintiff
would not have agreed to become or give security to the
defendants.
^^ After the plaintiff had been induced to agree to the
said arrangement the plaintiff's said solicitor, Mr. Duignan,
was called into the room, and informed by the plaintiff of
what he had agreed to do. The said Mr. Duignan strongly
protested against any such arrangement, and in the pre-
sence of the defendant Henry Williams made observations
to the plaintiff as follows : — ' Mr. Bayley, it's a very wrong
thing for you to do.' Aftd the plaintifl^ who was greatly
agitated, and was in a state of mental distress and excite-
ment, replied in the words or to the effect following: —
' What can I do ? These men ' (meaning the defendants)
* will have their money. My children can only strip roe
once, but if I don't do it it is transportation for William.'
The said Mr. Duignan protested in vain^ and the said Mr.
Duignan, finding that the pressure and influence brought
to bear on the plaintiff rendered his interference useless^
stated that he would take no part in the transaction, and
would leave. The said Mr. Thursfield requested the
Statement,
GASES IN OHANOERT. 647
plaintiff's said solicitor to remain and see the arrangement 1664.
carried out, but the said Mr. Duignan positively refiised to
haye anything to do with the transaction, and immediately
left. The said Mr. Thursfield and the defendant Henry
Williams were present and heard the observations and
remonstrances made by the plaintiff's solicitor.
^*The plaintiff was at the time much agitated and
affected, and became still more embarrassed in consequence
of the departure of the said Mr. Duignan, and the plaintiff
was induced to consent, and consented, to the terms dictated
by the defendants and their solicitor, solely under the belief
that the defendants would take criminal proceedings against
the said William Bayley if he refused to comply. And the
plaintiff charges, and it is the fsu^t, that the defendants
availed themselves of the position and mental distress of
the plaintiff to obtain irom the plaintiff an agreement to
become security for the total amount of all the notes bear-
ing the forged endorsements of the plaintiff's name, so far
as the existence of such bills or notes was then commu-
nicated or known to the plaintiff.
" The said Mr. Thursfield, after the plaintiflF's solicitor
had as aforesaid left the said bank, then and there prepared
an agreement, which the defendants required the plaintiff
to sign^ and the plaintiff accordingly then and there signed
the same without any professional advice or assistance, and
under the influence of the before-mentioned threat and
pressure.
^ The said agreement was as follows : —
' Wednesbury Bank,
• 20th April, 1863.
' To Messrs. Philip and Henry Williams,
* Bankers, Wednesbury.
' In consideration of your consenting to give up to me
the several under-mentioned bills and promissory notes, %
TJ u 2
648
CASES IN CHANCERY.
1864.
Uaylbt
V.
Williams.
Statement,
hereby charge all that my colliery situate at Tipton, in
the County of Stafford, and known as the Tipton Meadow
Colliery, with the engines, fixtures, and apparatus thereto
belonging, and all other the hereditaments and premises
described in the title deeds hereinafter mentioned, with the
payment to you of 7203/. 14«. 6d., being the amount ad-
vanced by you on the said bills and notes. And I hereby
agree to pay to you the said sum of 7203/. 14«. 6dF., and
I agree to deposit with you the several title deeds and
writings relating to the said Tipton Meadow Colliery by
way of equitable mortgage for securing payment to you of
the said sum of 7203/. Ua. 6d: "
The plaintiff was required by Mr. Thursfield to bring
his title deeds the next day, and on the 22nd April, 1863^
he delivered the title deeds of the Tipton Meadow CoUieiy
to Mr. Thursfield, and signed documents prepared by him,
one of which was as follows : —
" To Messrs. Philip and Henry Williams,
" Bankers, Wednesbury.
" In consideration of the sum of 7203/. 14*. 6cL already
advanced by you upon certain promissory notes bearing
my endorsement, and which promissory notes you have
this day delivered up to me, and in consideration of your
so delivering up the said notes, I, James Bayley, of Knowle,
Warwickshire, Coalmaster and Farmer, hereby charge
all that my colliery situate at Tipton, in the County of
Stafford, adjoining the Golds Hill Ironworks of Messrs.
Bagnall and Sons, the mines and works of Messrs. Haines
and Underbill, and the mines and works of John Bagnall
and Sons, and called the Tipton Meadow Colliery, and
containing six and a half acres or thereabouts, and now in
the occupation of Thomas Abishai Bayley, with the mines
and minerals thereunder, and the buildings of every de-
scription, steam and other engines, machinery, fixtures.
Statement.
GASES IN CHANCERY. 649
and apparatus thereon, and the appurtenances thereto, and 2^^
all the hereditaments and premises described and comprised
in the title deeds and writings hereinafter mentioned, and
all my estate and interest therein, with the payment to you
of the said sum of 7203/. 14«. 6<2., with interest thereon
from this day after the rate of 5L per centum per annum,
and which said sum of 7203/. 14«. 6d. and interest I agree
to pay to you ; and I now deposit with you the title deeds
and writings mentioned in the schedule hereto by way of
equitable mortgage of the hereditaments and premises
comprised therein for securing payment to you of the said
sum of 7203/. 14^. Qd. and interest^ and I agree, upon re-
quest, at my expense to execute to you a legal mortgage
of the hereditaments and premises hereby charged, with
full powers for selling, leasing, and working the said
colliery, and all other usual powers for securing payment
to you of the moneys aforesaid.
« Dated the 22nd day of April, 1863.
"James Bayley."
At the foot of the document was the schedule of deeds.
The other agreement also charged the property with 300/.
alleged to be due on another forged note. On signing
these documents Mr. Thursfield delivered to the plaintiff
the twenty-four promissory notes mentioned in the schedule^
and the additional note. On the following day, the plain-
tiff having had time to consider the effect of the trans-
actions, consulted his solicitor, who immediately wrote to
the defendants repudiating the transactions as improper.
The defendants meanwhile refused to honour his cheque»
though he had a balance in his favour of 6600/., and shortly
afterwards the plaintiff filed this bill. The defendants there-
upon commenced an action in the Queen's Bench upon the
agreement.
In the 20th paragraph of Mr. Duignan's affidavit he
deposed as follows : — '' The whole negotiation proceedecl
650
CASES IN CHANCERY.
1864.
Baylbt
V,
Williams.
Statements
upon the footing that the said notes were forgeries by the
said William Bayley, for which he was liable to a criminal
prosecation, and I had not the smallest conception or
suspicion during the whole of the said interview that the
defendants or Mr. Thursfield regarded the transaction in
any other light,"
Soon after the execution of the agreements William
Bayley absconded.
The defendants, by their answer, alleged that in the
action by the plaintiff against William Bayley the par-
•ticulars of demand showed a balance of 4228/. 8«. Zd^
less 1220/. \8. 3c/., of which sum about 600/. was due on
three bills of exchange. In the 12th paragraph of the
answer they alleged that a very large number of bills
and notes to which the said William Bayley was a party,
and which purported to have been endorsed or accepted
by the plaintiff, passed through their bank. The answer
then referred to notices which Mr. Deakin had sent to
the plaintiff of his son's bills which bore the plaintiff's
endorsement being dishonoured, alleging that as to some
of them the plaintiff expressed great concern. The 35th
paragraph of the answer was as follows : —
" Shortly after the interview which took place between
the said Thomas Abishai Bayley and the said Mr. Francis
Deakin^ as hereinbefore mentioned, the said Mr. Francis
Deakin went with the said Mr. Thursfield, our solicitor,
to see this defendant, Henry Williams, and this defendant,
Henry Williams, who had previously been informed
by the said Mr. Bassett Smith of the first letter so as
aforesaid witten by the Birmingham Town and District
Bank, and his own interview, hereinbefore mentioned,
expressed the belief, which he in fact entertained, that the
notes held by our bank, if not actually endorsed by the
plaintiff himself, had been so endorsed with his consent
and authority, and this last-named defendant asked the
said Mr. Thursfield whether in such case they would be
Stnt0tH0Hi,
CASES IN CHANCERY; 651
forgeries, and the said Mr. Tharsfield told him that thej tMi.
would not, and this defendant, Henry Williams, compared batlbt
the endorsement of the plaintiff's name on some of the Williams.
notes with the signature of the plaintiff to one of his
cheques which had passed through our bank. And this
defendant, Henry Williams, said, as in fact was his opinion,
that he was not satisfied that such endorsements were
not in the handwriting of the plaintiff. Having regard
to this, it was arranged to wait till it was seen what steps
the said William Bayley and his family took in the matter.
At three o'clock in the afternoon of the same day the
said Thomas Abishai Bayley came again to our bank, and
then and there saw the said Mr. Francis Deakin. The
said Thomas Abishai Bayley then promised to bring the
plaintiff and the said William Bayley to the said Mr.
Deakin's house that evening. In about an hour after the
last-mentioned interview the said Thomas Abishai Bayley
came to the said Mr. Francis Deakin's house and told the
said Mr. Francis Deakin that his &ther (the plaintiff) was
outside, and asked if he (the said Mr. Deakin) would see
him, to which request the said Mr. Deakin consented*
Thereupon the said Thomas Abishai Bayley brought the
plaintiff into the said Mr. Deakin's house. The plaintiff
on seeing the ^d Mr. Deakin expressed astonishment and
asked whether there were any other bills besides the one
he (the said Mr. Deakin) had shown him. The said Mr.
Deakin had not at that time mentioned any others. The
said Mr. Deakin replied, ' Yes, several.' The plaintiff
thereupon asked impatiently, ' Can't you tell me the
amount V The said Mr. Deakin replied, ' About 50002.
or 60002.,' he thought. The plaintiff said, ' You make
my hair stand on end. I know no more about it than
this stick,' referring to a stick which he then held in
his hand. The plaintiff then said that he was going, an
old man and grey, and could not be expected to beggar
himself; but that he was willing to do anything to assist
652
CASES IX CHANCERY.
18G4.
iUVLBT
V.
Statement,
• in reason. The said Mr. Deakin said that Messieurs
Williams (meaning us) did not wish to exercise any pres-
sure upon him (the plaintiff) if it could be satisfactorily
arranged. We were not nor was either of us present at
the said meeting up to this time, but we haye been
informed by the said Mr. Francis Deakin and believe that
the plaintiff did not then state that he had never given
his name to any bill, except the bill which had run off
some time before, or give or make any other explanation
or statement to that or the like effect, but that he said
that he knew nothing whatever about ' the bills,' without
making any exception as to any particular bill."
The answer in several passages (42nd, 44th, & 4oth
paragraphs) denied that the defendants ever admitted that
the endorsements were forgeries. In the 49th paragraph
they alleged that at the meeting of the 20th April, 1863,
the defendant P. Williams having remarked that, accord-
ing to his statement^ William Bayley was solvent, his
brother J. A. Bayley said, " Oh, its a capital trade'* (Wil-
liam Bayley's), and added it was too good a thing to give
up. It was well worth 1000/. a year he was sure. He had
gone through the books. The plaintiff then said, ad-
dressing William Bayley, " Now, William, don't deceive
these gentlemen. You say you can pay them 1000/. a
year?" W. Bayley replied, "Yes, father, I can." The defen-
dant Philip Williams thereupon said, ''We shall have
nothing to o with any 1000/. a year. If the bills are
are yours " (addressing the plaintiff) " we are all right
K they are not we have only one course to pursue. We
cannot be parties to compounding a felony."
In the 57th & 58th paragraphs the defendants denied
that Philip Williams asked William Bayley if he knew
the consequences, or used the words, "Young man, do
you know this is transportation?" or that he replied, " If
I am transported twenty times I will not deny my hand-
writing,"
CA8E8 W GHANCERT. 653
In the 74th paragraph the defendants admitted that
Mr. Thursfield did once say, " It is a serious matter," and
that Mr. Duigilan immediately said, '* It is a ease of trans*
portation for life." But Mr. Thursfield had not said for
whom or in what respect it was a serious matter, and no
remark was made on Mr. Duignan's observation.
In the 86th paragraph they denied that the word " trans-
portation" was ever used^ or that they made any threats,
and they alleged that they always believed, if the
endorsements were not actually signed by the plaintiff,
that he had authorised, or William Bayley believed he had
authorised, his name being put on the bills.
In the 93rd paragraph they alleged that, " Except the ob-
servation of the defendant P. Williams at the interview,
that * If the bills were not James Bayloy's, we had but
one course to pursue,' and the observation of Mr. Duignan
that ^ It is a case of transportation for life/ nothing
approaching an intimation of the possibility of criminal
proceedings had been said to the plaintiff, and, with the
view which we entertained of the matter, it was very pro-
bable that, if no arrangement had been come to at the last-
mentioned interview, we should rather have sued the
plaintiff at law on the notes than have taken criminal
proceedings against the said William Bayley. At any rate,
no design whatever of instituting criminal proceedings
against William Bayley was ever formed by us. In fact the
matter never reached a stage and point when it became
necessary for us to intimate whether we would do so or
not"
In the 102nd and 103rd paragraphs they admitted that
the plaintiff signed the further agreement without separate
advice or assistance, and denied that he required such ad-
vice or assistance. They admitted the second agreement
had not been perused by any solicitor on his behalf.
In the 133rd paragraph they alleged that they honoured
two cheques for 37/. and 40/. each, and in the 137th para-
654
CASES IN CHANOfiRY.
1964.
Statetnent.
graph explained that they refused to honour the cheque
for 5000/.^ because they thought it an unjustifiable thing
for the plaintiff, without the least notice, to transfer his
balance from the defendants' bank to another banker while
the claims under the agreement remained unsatisfied.
The I42nd and 147th paragraphs of the answer^ which
raised the material defence to the bill, were as follows: —
^* We insist that the said agreements do not amount to
and were not in fact an arrangement entered into by us
for compounding a felony, and we make out the contrary
by the statements herein contained. We understand that
compounding a felony is ' the taking of a reward for for-
bearing to prosecute an offence of that description.' But
we say that we never did anything of the sort. We never
threatened to prosecute^ or asserted that we intended to
prosecute, or even determined to prosecute the said William
Bayley. It never became necessary for us to determine,
and we never determined, or even deliberated, whether we
would do so, and we never forbore or agreed to forbear to
do so, nor did we take any reward whatever for our alleged
forbearance or agreement to forbear to do so. And on the
execution of the said agreements we did not cancel the
notes alleged to bear forged endorsements, but handed
them to the plaintiff, leaving him to indict his son for
forgery or to abstain from doing so as the plaintiff might
think fit. And we further say that if we thought the said
William Bayley had committed a felony, and we had any
desire to prosecute him, we have entered into no promise,
agreement, or engagement whatever to abstain from pro-
secuting the said William Bayley, but we submit whether,
under the circumstances herein appearing, a felonious in-
tention on the part of the said William Bayley existed,
and whether he could be convicted of feloniously forging
the plaintiff's endorsements on the said notes, though we
insist that it is not material for our defence to this suit
whether such be the case or not.
CASES IN CHANCERY.
655
•' The plaintiff rests his case mainly on two grounds —
first, that the transactions which led to the said agreements
were equivalent to compounding a felony ; secondly, that
he was induced by perforce to execute them. But we say,
first, that if any felony was committed (which we do not
admit, but which is, as we insist, immaterial as regards the
question in this suit), we never compounded it, that is to
say, we never forbore or agreed to forbear an intended
prosecution for it^ or even threatened or contemplated a
prosecution ; and, secondly, we say that no perforce what-
ever was used against the plaintiff. He had the advice of
his solicitor throughout the negotiations which led to his
signing the said agreements. He willingly offered to enter
into the agreements. He had plenty of opportunities for
reflection and deliberation. In the first instance he brought
the wrong title deeds, and might have refused to bring the
right set of deeds if he had repented of his engagement
He first signed a document intended to lead to a formal
agreement; he then signed two formal agreements. It
was he who requested that the second of such agreements
should be. prepared on the same footing as the first. He
received the consideration by the delivery to him of the
said notes, even if he did not sign the said notes with his
own hand. The relation of father and son existed between
him and the other party to such notes, and he acquiesced
for some time in the existing state of things, audit was not
until he found that his said son's circumstances were hope-
lessly and irretrievably embarrassed that he conceived, or,
at any rate, that he acted on the design of repudiating the
said agreements, or insisting that they were invalid."
The defendants relied on Mr. Duignan's afiidavit where
he stated that the plaintiff said, ** If you and Mr. Duignan
can put me right with the creditors, so that I can come
in as a creditor for the account."
1864.
Batlbx
V.
Williams.
Statetnent.
Mr. Malina and Mr. F. W. E. Everitt for the plaintiff. — Argument.
656
OASES IN CHANCERY.
1864.
Batlbt
V.
Williams.
Argument,
There were two grounds on which these agreements most
be set aside by this Court— first, that the transaction oot
of which they arose was the compounding of a felony, and
therefore void both at law and in this Court; and, secondly,
that those agreements were executed by the plaintiff with-
out having had the benefit of independent advice, and
under pressure as great as could be exercised by one man
over another. That where the consideration for an agree-
ment was the doing of an illegal act the agreement was
void at law was clear from the authorities. Thus, in
Sprye v. Porter{a) a plea of maintenance to an action
on an agreement was held good on demurrer. In Col-
lins y. Blantem{b) an agreement to stifle a prosecution
was held bad, and if there was any doubt on this point
previously, this case settled the law: JSof parte Criich-
ley(c)^ JSjeir y. Leman(d). In GHlbert v. Sykes{e), and
Evans v. J<mes{f), where the contract was in the form of
a wager, it was held void.
Even if there had been a valid claim by the defendants
on these bills they could not enforce it till they had dis-
charged their public duty of prosecuting the delinquents
[Stone V. Mar8h{g\ Ex parte Elliott(h)\ or at least till
the offender had been prosecuted: Chowne y. Bay lis {i).
Claridge v. Hoare^j ), Waite v. Jones (k), Dyer v.
TymeweU{l)j Mare v. Sand/ord{m), Egerton v. Brown-
low {n\ Jackman v. Mitchell (o)y Smith v. Cuff{p\ Wed"
lace V. Hardacre(q\ Osbaldiston v. Simpson{r)j Bosan-
(a) 7 EU. & Bl. 68.
(b) Smith, Leading Cas. vol. 1.
318.
(c) 3 D. & L. 627.
(d) 6 Q.B.(N.S.);308, affirmed
in error, 9 Q. B. (Nc S.) 371.
(e) 16 East, 150.
(/) 6M.&W.77.
(g) 6 B. & C. ool.
[h) 3 M. & Ayr. 110.
(t) 31 Beav. 351.
(j) 14 Ves. 69.
(k) 1 Bing. N. C. 656.
(/) 2 Vern. 122.
(m) 1 Giff. 2«8.
(n) 4 H. of L. 1.
(o) 13 Vea. 581.
(p) 6 Maule & 8. 160.
(q) I Gamiib. 45.
(r) 13 Sim. 513.
CASES IM CHANCERY.
657
quett V. Dwhwoodia)^ Reynel v. Sprye(b), and Osborne v.
WilHa7ns{c) were cited on the question of illegal con-
tracts.
But^ secondly, on the mere ground of pressure these
agreements were void : Dent v. Bennett {d)y Chesterfield
V. Janssen(e), Heathcote v. Paignon{f). Inadequacy of
consideration would imply pressure: Underhill v. Hor-
wood{g). Wade v. Simeon{h).
It was submitted^ therefore, on both grounds^ that
these agreements must be set aside.
1864.
Argument,
Sir H. Cairns, Mr. Karslake, and Mr. Kingdon for the
defendants.
The whole evidence in the case was inconsistent with
the claim set up by this bill. The plaintiff's story was,
to say the least of it, improbable. He was a shrewd man
of business, but of imperfect education, and, as he himself
said, left the counting-house business to others. What,
therefore, was more probable under such circumstances
than that he should authorise his son to use his name ?
But if he was in the habit of doing so, though not uniformly^
he was liable on the notes: ByUs on Bills (i). But, whe-
ther he did or not, by the course he took of acquiescing in
the claim made by the defendants after he had received
notice of the dishonour of some of the bills he adopted
his son's acts.
But supposing the plaintiff knew the endorsements were
forgeries, unless the defendants knew it, which they posi-
tively denied, the transaction was not illegal. They be-
lieved they had a valid claim on the plaintiff, and consented
to take security for it. That would not make it illegal.
(a) Cas. temp. Talbot, 38.
(6) 1 De G. M. k G. tJ60.
(c) 18 Ves. 379.
(d) 4 M. & C. 269.
\e) 2 Yes. sen. 124.
(/) 2 B. C. C. 166.
(g) 10 Ves. 209.
(h) 2C.B.342(M.G.&Scott).
(t) Pages 29, 30, 8th ed.
658
CASES IN CHANCERY.
1864.
Baylbt
V.
Williams.
Argument,
The plaintiff had an obvious motive in doing what he did.
The son's business was said to be valuable, and the &ther,
who had against him a claim for upwards of 3000/., would
have lost his whole debt unless the son were saved from
ruin. In this state of things he volunteered to take the
son's debt upon himself, as he alleged^ but, as the defen-
dants contended, he consented to give security for the
debt of himself and his son. Then where was the ille-
gality ? Where was the pressure ? The cases cited as to
the forgery had obviously no application. As the defendants
were ignorant that a crime had been committed, it was
impossible for them to compound a felony. But even if
they knew it, the agreement was not void unless they had
contracted not to prosecute : Ward v. Lloyd (a). A trans-
fer of property made on the eve of bankruptcy, but under
the apprehension that a degree of force, civil or criminal^
is about to be applied, is valid: De Tastet v. Carol! {h\
In order to vitiate these agreements there must have been
a distinct contract to stifle a prosecution: Wallace v.
Hardacre (c), WicKkam v. Oatrill (d).
As to the alleged want of consideration, the delivery up
of the notes was sufficient to support the agreement : Haigh
V. Brooks {e).
On these grounds it was submitted that the bill must be
dismissed with costs.
lEx parte De Tastet (/) was also cited].
Mr. Malina was part heard in reply, but was stopped by
his Honour.
The Vice-Chancellor :—
Judgment. This suit is instituted to set aside two agreements^ dated
the 20th and 22nd April, 1863, on the ground that they
(a) 6 M. & G. 785.
(5) 2 Rose, 462; 1 Starkie, 88.
(c) 1 Campb. 45.
{d) 2 S. & G. 353.
(e) 10 Ad. & £1. 323.
(/) Mont. 138.
GASES IN GHANGERT. 659
were executed by the plaintiff in a transaction which ^^^'
amounted to compounding a felony committed by the batlby
plaintiff's son. Williams.
If the fair result of the evidence shows that the agree- , ]J ^^^
ments were executed under influence felt by the plaintiff
and exercised by the defendants^ if the fear of the criminal
prosecution against the plaintiff's son, or if the result of
the discovery of a criminal act, for which the plaintiff was
not liable, was used by the defendants against the plaintiff
to operate upon his fears, so as to induce him to give a
security which would relieve his son firom a criminal pro-
secution, according to the law of this Court a security
obtained under such circumstances cannot stand. The
inequality in the situation of the parties, the one exacting
a security which the other is driven to give in order to
save his son from exposure, disgrace, and ruin, taints the
security obtained under the influence of such fears.
If the main and influencing purpose was the relief of the
son from the consequences of his crime, if this was the
main consideration operating on the Other's mind, and was
the origin and real cause of the transaction, the interven-
tion of other circumstances, or other collateral advantages
to the father, will not be enough to justify the Court in
upholding such a security.
The only question, therefore, in this case seems to be,
whether the defendants took advantage of the plaintiff's
situation.
The origin of the negotiations which ended in the
agreements was the discovery that the plaintiff's name had
been forged by his son on promissory notes of which the
defendants were holders to a large amount. There is
nothing in the evidence on either side to show that the
plaintiff was liable to pay the notes, or that the defendants
were negotiating with him on the footing of his being
under any legal liability to them.
In the 93rd paragraph of the defendants answer they
Judgmtmt.
660 CASES DC CHA5GERT.
1864. say, ^ No design whatever of inatitating criiiiiiial
Batlbt ings against the said William Baylcj was era
Williams. ^•" ^^^ *^^ ^^ *^ remarioiWe statonent, that. ' h
fact, the matter never reached a stage and poini whec ^
became necessaiy for ns to intimate whether we wedU i.
so or not."
In paragraph 74 they say that Mr. Thmsfidd, tbc
solicitor, did once, in the conrse of the discossioii, say, "" I:
is a serious matter," and that Mr. Doignan (the plaiatif;
solicitor) immediately said, ** It is a case of tran^KUtati:-!
for life." These significant words are followed bj thb i:-
significant explanation, that '^ Mr. Thnrsfield had not sc:
for whom or in what respect it was a serious matter, ai^
no remark was made opon the sacceeding obserration c
the said Mr. Doignan, yiz., that it was a case of tran^rt:-
tion for life."
In paragraph 35 of the answer the defendants say, ^ Tu
said Mr. Deakin (the manager of the defendants' bank)5ai:
that Messrs. Williams (meaning us) did not wish to exs-
cise any pressure upon him (the plaintiff) if it cooU V
satisfactorily arranged."
It is a material circumstance that Mr. Dui^nan, wk::
he found the plaintiff disposed to enter into the agreemt.
and to assume the liability, in order to relieve his sec
remonstrated strongly, and, finally, positively refusing :
sanction such a transaction, retired altogether, and left t>
plaintiff in the hands of the defendants and their solidtd^
who then procured the plaintiff to execute the agieemeii
of the 20th April. Nor is it unimportant that this M
agreement of the 20th April, according to what appears n
be the truth of the case, contains nothing like an ackooff*
ledgment of any legal liability of the plaintiff. The secoiii
agreement, which is dated the 22nd April, 1863, abi
signed by the plaintiff in the absence of his solicitor, is il
framed as to make the plaintiff recognise the foiged sigst]
ture as genuine, for it recites that the notes were endaccJ
jtbaitfi^'^
CASES IN CHANG£JEtT.
by the phintifl; a recital now admitted to be ontrae, and
contraiy to the troth as onderstood by the parties at that
time.
The resolt of the endence on both sides is given in the
20th paragraph of Mr. Doignan's affidavit, where he says,
**The whole negotiation aforesaid proceeded npon the
footing that the said notes were forgeries by the said
William Bayley, for which he was liable to a criminal
prosecution, and I had not the slightest conception or
suspicion during the whole of the interview aforesaid that
the defendants or Mr. Thursfield r^arded the transaction
in any other light."
It is unnecessary to consider whether the offence of
compounding a felony was committed or not. It is not the
province of this Court to decide whether crimes or misde-
meanours have been committed. If it were necessary to
decide the question, there would be great difficulty in
holding that an agreement not to prosecute is not to be
implied.
The real question ist whether there was that degree of
equality between the parties to these agreements which is
necessary to make them valid. Where a man is driven
to comply with terms which were exacted by operating on
his fears, and by the power which the other parties make
him see they have acquired of prosecuting, exposing, and
disgracing his son^ there is an inequality and a want of
that freedom of action which is necessary to the validity
of an agreement. Where a power of operating on a man's
fears exists, and he enters into a contract unwillingly and
under the influence of that power, its existence constitutes
pressure. The assent which is necessary to the validity
of an agreement must be an assent uninfluenced by any
power of operating upon his fears of punishment, or of
disgrace which may be inflicted on the dearest object of
his natiyral a£R9ction at the instance of the person to
whose power he yields. The aigument founded on the
661
1S64.
Judgment.
662
GASES IN GHANGER7.
1864.
Batlbt
WiLLIAVS.
Judgment.
allegation that the plaintiff had connived at the use of
his name by his son it not jastified by the evidence in
the suit.
But even if the fact were proved, it seems to have no
material bearing on the question as to the validity of the
agreements, and was not in any way an ingredient or
actuating motive in the negotiation. The evidence shows
that the greater part of the facts relied on as to this part
of the case were discovered by the defendants long after
the transaction, and do not seem to be of very material
bearing on the real question before the Court.
For the defendants an attempt has been made to show
that the plaintiff's object was to gain a pecuniary benefit
to himself by getting the entire dominion oyer his son's
assets, so as to secure payment of a pre-existing debt to
himself. That view of the transaction is contradicted by
the evidence of what passed between the parties. The
defendants' counsel have relied on a passage in Mr.
Duignan's affidavit, where he states that the plaintiff said,
** If you and Mr. Duignan can put me right with the
creditors, so that I can come in as a creditor for the
amount." But the antecedent and subsequent conversa-
tion of the parties, as described in the same paragraph,
-annihilates the argument; for the witness says that on
his remonstrating with the plaintiff against his giving the
proposed security the plaintiff replied, " What can I do ?
These men will have their money, and if I don't guarantee
it^ it's transportation." There must be a decree declaring
the invalidity of the two agreements and ordering that
they be delivered up to be cancelled, that the plaintiff's
title deeds be delivered to him, and that the promissory
notes be delivered back to the defendants.
There must also be a direction discharging the order
of July, 1863, and that the costs of that order and of the
motion for the injunction be costs in the pause^ and that
the defendants pay to the plaintiff the costs of the suit.
CASES n CHA5C£RT.
f«J^
5anL — IW aam id er fmm
De TaaiA, MoatM^\ B<$«BtB» m
iar like c:Sanmot si
i Lori Ui:m ni
hud, a;^ LoH EHeabora^
and Loid Ihn^fciM ob t^ ocber,
bat OB fiiiiiwitx<i it M^em
thai the geacnl doctnae as itatod
by Lora Wdoa ramns BBslnkeD.
TheopinioBe ofLord EQeoboraqgh
and Lord ITiiii%1hbi were founded
an the aairov groand that a
traaafier of property oa the eve of
faankn^tey to one creditor^ to
the prejndke of the other credi-
tor, anlesi it be Toluntaij, is
Talid. Thb voald be tnie if the
only pressure were the threat of
an actum or ezecutioB for debt in
a civil action. In that case Lord
E3don intimated his opinion that
the qneatbtt had never been pro-
perly tried in the Court of King's
Bench, if that Court were of
opinion that an j pressure, that is
to say, a pressure through a threat
of a criminal prosecution, was
sufficient to enable a party to
hold property obtained under it.
The decision of Lord Brougham
in that case seems to apply only
to the meaning of the word " vo-
luntary'* in considering the effect
of the bankruptcy law. But, even
in that view, and with reference
to the bankruptcy law, the general
equitable doctrine as to the effect
«f a
w««U[ a^w
he held to taiai the trHMBOM^
aad to Hake it iaiaBi cf^oa a
|aiBd|4e of great pa^ik issfw^-
aaee. Aad apMi th« wy^t <^
aathorirr the opiak»s «f L^x^
Eldoa ttd Sir JaM* MaasMd
would probably prevail. la
PothiePs IVeatise oa CVMliacfs^
in the article of waat of hb«rtT|
the naia pn^>osidon is that th«
coaaeat by which agrMneats an
fonaed oc^t to be ft««.
Sir William David Evaas* ia
his vafaiahle translation of PMhiw
(in a note, vol. 1, pag« 18), has
given this sensible criticism of
the doctrine of the civil law, ^ If
a person actually contracted ua«
der the impression of i^ in«
duced by the misconduct of
another, though by means in
general inadequate to such aa
effect, it should be a suMciont
ground to vitiate tho contract;
and the iuBrmity of one man^s
mind should not bo taken advaiw
tage of for the purpose of con*
ferring a benefit on anotheri
whether the other was or was
not implicated in the misconduct,
though the age, constitution, and
occupation of the party might
furnish very material cvidenco in
deciding upon the fact, and suoh
I think it is probable would be
the decision of the English law,"
IUxia\
CASES IN CHANCERY. 665
18G4.
HEATH V. LEWIS. ™
Ex PARTE JOHNSON. ^^- "'*•
A fund in
cuart not re-
vJN the death of her father, in 1845, Sarah Emily, the
present petitioner, became entitled under her grandfather's
will to a sum of about 1300/. cash and stock. ^uced into
possession,
In 1851 she married one Charles Johnson ; there was accruing in
no settlement entered into on her marriage, and, by an ^ff^^ ^^ ^^ose
order dated the 9th July, 1856, and made in the suit to ™f""^»8« »«
S6tCl6ni6nt W&8
administer the grandfather^s will, the fund was carried to made, and wiio
the*separate account of Charles Johnson and Sarah Emily by a Colonial
his wife, subject to legacy duty. By a deed, dated the ^,11" ofVhe*'*'
15th of May, 1857, to which the wife was no party, the h»«band,
. declared to
husband mortgaged the fund to Richard Scale, who belong to the
obtained a stop order on it on the 25th of June, 1857. rmor^a^ee'
It was alleged that the wife had authorised his doing so u^^5'**"d,ii8o
by power of attorney, but this she denied. At the date as against her
of this transaction the wife was resident abroad, but on claiming a
the 15th June, 1858, being still abroad, she presented w*"«"^«°*-
her petition to this Court, stating that her husband had
been living away from her for a considerable time» and
had not during that period contributed to her support,
but had received large sums of money belonging to her
which he had applied to his own use; that he had
recently become insolvent ; and that his estate was now
vested in the provisional assignee of the Court for the
Relief of Insolvent Debtors. The petition thereupon
prayed that the fund might be settled upon herself for
life with remainder to her children.
The husband also presented a petition in the name of
himself and wife praying for payment to him of one
moiety of the fund, and that the other might be settled.
Both petitions came on for hearing on the 19th July, 1858.
VOL IV. Y Y
666
CASES IN CHANCERY.
1864.
Heath
V.
LswiB.
Ex parte
Johnson.
Statement,
The Court, upon the hearing of the two petitions,
dismissed that of the husband, and upon the wife's
petition made an order that, the Court being of opinion
that the petitioner was entitled to have a settlement of
the whole or some part of the Aind, the income of the
fund should be paid to the petitioner for her separate
use until further order, and that the consideration of the
rest of the petition should be adjourned, with liberty to
any party to apply as to the question of what settlement
ought to be made. No further application was in fact
made, and the fund now remained in court, subject to the
above order.
The husband shortly afterwards instituted proceedings
in the Colonial Court of the Cape of Good Hope against
the petitioner, alleging that during his absence in England
she had committed adultery, and praying for a divorce.
On the 15th November, 1859, he obtained a decree from
the Circuit Court held in Port Elizabeth, without costs,
dissolving the marriage. There were three children of
the marriage, of which the two elder were ordered to be
delivered to the husband. The husband has since mar-
ried again. The wife now presented her petition praying
that of the sums of stock and cash in court amounting in
present value to about 1300/., and which, by virtue of an
order dated the 9th of July, 1856, made in the suit for
the administration of the estate of the testator in the
cause, had been carried to '^the separate account of
Charles Johnson and Sarah Emily Johnson, subject to
legacy duty,'^ the stock might be sold, and that the pro-
ceeds thereof and the cash might be paid to the petitioner.
The petition was served on the husband and on his
assignee in insolvency, and also on his mortgagee, and
now came on to be heard.
Argument. j^^^ Greene and Mr. Caldecot, for the petitioner.— It is
not pretended that the husband ever reduced this fund
CASES IN CHANCERY.
667
into possession daring the coverture^ and the law is quite
dear that if so it remains the property of the wife.
Mr. Freelingy for the mortgagee. — The husband, who
has married again and cannot dispute the validity of the
divorce, must admit that he was during the time of the
coverture domiciled at the Cape of Good Hope, for other-
wise the divorce would be a nuUity, and he would be
entitled in his marital right But if so the rights of the
parties must be governed by the law of the colony, which
authorises the assignment by a husband of his wife's
personal estate : Rex v. Lolley (a).
Mr. Osborne^ for the assignee, contended that during
the coverture the husband had endeavoured to settle the
fund : he therefore claimed one moiety of the fond for
the husband's creditors, and submitted that the other
ought to be settled.
The Vice-Chancellob : —
It is beyond a doubt that this fund is the property of
the lady who is the petitioner, and that unless there be
any marital rights remaining in her former husband she
would be clearly entitled to it. The Court seems to have
considered in July, 1858, that, as against him and in
derogation of his marital rights, she had an equity to a
settlement ; but by an order made in that year the Court
gave leave to those interested to apply for a settlement.
No order for a settlement was made, and no order was
made either taking away the husband's rights existing at
that time or positively giving the property to the wife ;
but there was simply leave given to the parties to apply
for a settlement. It appears that at the Cape of Good
Hope a decree was obtained by the husband, being a
1S64.
Hbath
V.
Lbwib.
£x parte
Johnson.
Argument.
Judgment,
(a) Ru88. & Ryan, 237.
T Y 2
668
CASES IN CHANCERY.
1864.
Hbath
V,
Lewis.
JEx parte
Johnson.
Judgment*
resident in the colony, for a divorce from the petitioner. •
The Colonial Court upon the evidence dissolved the bond
of marriage. The petition of the divorced wife is opposed
by the mortgagee of the husband, and a question about
the validity of the divorce is raised on the ground of the
domicil of the parties, but without a tittle of evidence.
Questions of domicil, and as to the rights of husband and
wife, are often of the greatest difficulty. In this case
there seems no just ground for raising them.
I cannot but assume that the Colonial Court was the
proper jurisdiction to dissolve the marriage, and that
everything was done properly. The judicial proceedings
seem to have been properly taken and the decree pro-
perly pronounced. As to the question whether or not I
am to consider the former husband of this lady as her
husband still possessed of a marital right— either with
her consent to take the whole of this fund, or without
her consent subject only to her right to so much as this
Court would settle upon her — I can see no ground for
entertaining it. LoUey*s case has been referred to, but
that was a case in which questions of domicil were raised
upon conflicting evidence. In the present case there is
no evidence whatever to impeach those judicial pro-
ceedings. The husband himself does not come forward
to assert any claim, but his mortgagee and his assignee
in insolvency have done so, as it appears to me, upon
grounds which cannot be maintained in argument.
The evidence of the petitioner proves that she is a
single woman, and if that be so a mortgagee of her
interest in a chose in action not reduced into possession
during the coverture cannot interfere with her right.
The question as to the right of the children is peculiar,
inasmuch as the Court, in 1858, thought the petitioner
had a right to the fund, and gave leave to apply upon the
subject of a settlement. If a settlement had been made
the children would no doubt have had some provision made
CASES IN CHANCERY.
669
for them bj it. But in the absence of a settlement or a
decree for a settlement I know of nothing which can
enable the children to claim a settlement of this fund.
The children are not in this country, and it is said that
they are under the care of their father, which is in law
the proper care, for the law casts upon the father the
duty of maintaining them. I am not aware of any case
in which, where a wife does not ask for a settlement, her
children have been held entitled to come and ask for one.
The Court has never compelled a wife to settle her
property as against her own right to it, but it asserts a
right to settle her property as a protection against her
husband. I never heard of a question being raised as
between the mother and her children. An order has
been obtained to serve them with a copy of the petition,
but that was a mistake. The order was applied for under
a misapprehension, and I am glad it will not be acted
upon. I wish the counsel for this petitioner to under-
stand that, although the children are maintained by their
father, they are her children also. I have no power to
compel her to settle the fund, and all I can do is to
remind her that the children are still her own. The
order will be to transfer the whole of the fund in court to
the petitioner, and that the costs of all parties appearing
on the petition be paid out of the fund.
1864.
Hbath
V,
Lbwib.
Ex parte
Johnson.
Judgment,
670 CASES IN CHANCERY.
1865.
March 22,2S,
24,26,27,28.
May 3, RHODES V. BATE.
Where the 1 HIS bill was filed by Sophia Rhodes against Mr.
profession^ • . -r
adviser of the Robert Bate, her professional adviser, the Rev. Henry
Bvare of her*^ Codrington, for whose debts she had been rendered liable,
pecuniary ^^^^ Francis and William Brice, who claimed to be inter-
means, and of ^
the influence ested in the property belonging to the plaintiff.
ovfip hep —
possessed by The bill alleged that the plaintiff in 1848 went to reside
?n-ia^ who" ^i*^ *^® defendant Codrington, who is her brother-in-law,
was indebted and continued to reside with him till May, 1863. That the
to him, took ...
secnrities from plaintiff received from the trustees of her father's will, in
for theamount 1853, 800/. in cash; in 1854, 1200/. more; and the balance,
the* Cowl Mt amounting to 3880/., was with her sanction invested on a
them aside, mortgage of leaseholds at Islington transferred to her. The
and made the . *»
defendant pay plaintiff, shortly after receiving the sums of 200/., 600/.,
the sSt ""^ a»d 1200/., lent them to the defendant Codrington at tis
urgent request, and with the privity of Bate, to be invested
by Codrington in land which Bate induced Codrington to
purchase. Codrington promised to give to plaintiff good
security for the said siuns, amounting to 2000/., but omitted
to do so, and those sums were lost. The defendant Bate,
in October, 1857, knew that such sums were lost, and
that the sum of 3880/. represented her whole fortune.
The bill alleged that the plaintiff first employed Robert
Bate as her professional adviser in December, 1853, when
she was desirous of altering her will, and he by that means
became fully acquainted with the amount of her fortune,
and, from the knowledge acquired by him in the course of
such investigation of her accounts, conceived the design
of diverting the plaintiff's fortune from her, and applying
the same towards payment of Codrington's debts to him-
self. The bill also alleged that, in consequence of the hos-
tile manner in which the trustees' accounts were examined
CASES IN CHANCERY.
671
by Bate, an estrangement took place between the plain-
tiff and her brother, one of the trustees, so that no
communication passed between her and him at the close
of 1862.
The bill then alleged that in 1851 Codrington, at the
suggestion and under the advice of Bate, commenced a
system of speculating in the purchase and sale of land,
and continued speculating till 1861 ; and that Bate acted
in the matter of the purchase of mortgages and sales of
land made by Codrington, and entered the particulars of
such transactions in ledgers and account-books kept by
him ; and that such particulars formed part of a correct
account kept by Bate against Codrington in the ledger,
of which there was no copy given to the plaintiff or to
Codrington till July, 1861. The bill charged that it was
in July, 1861, that Bate first constructed the account.
The bill then set forth several purchases by Codring-
ton, and subsequent mortgages to secure the purchase-
money, the result of which was to leave certain sums due
to Bate. The bill then stated one transaction in which,
Codrington having accepted a bill of exchange dated the
5th of August, 1854, and that bill being dishonoured, the
plaintiff was induced by Codrington to accompany him to
Bate's office, where, without inquiry what she had to sign,
she signed some printed form of bond which Bate filled
up and produced to the plaintiff for her signature, and
which proved to be a joint and several bond of the plaintiff
and Codrington in a penal sum of 64321 to secure 321/. 10^.
The bill alleged that the plaintiff was wholly unconver-
sant with business in 1854, and wholly under the influ-
ence of Codrington, and the defendant Bate ought to
have advised her not to execute the bond, or to have
explained the effect thereof, but that he did neither. The
bill also alleged that only 221/. 10^. was due, and not
321/. 10^., and that such fact was in 1857 admitted by
Bate.
1885.
Rhoobs
V.
Bate.
StatgmenU
672
CASES IN CHANCERY.
1865.
Statement.
The bill as amended then traversed an allegation of the
defendant Bate that he had ever lent her any money or
paid the same for her use, or that on the 3l8t of March,
1855, Codrington and plaintiff, as his surety, ever accepted
a bill of exchange of that date drawn on them by Bate
at three months for 525/. by way of securing part of the
balance of 1033/. 0^. 4<f. The Bill alleged that no con-
sideration was ever given to the plaintiff for accepting the
said bill of exchange, and the plaintiff charged that if she
ever did accept it, which she did not remember, she did so
under the pressure of the defendants Bate and Codrington,
and that she did not know that the effect of joining was to
make her personally liable to pay 525/., and the pluntiff
charged that had she known it she would not have signed
such bill, and that Bate ought to have advised her not to
sign the same. The bill then referred to several liabili-
ties she had incurred, t. e. a covenant in a mortgage deed
of the 30th of April, 1855, a bond for 250/. as collateral
security, which the plaintiff alleged that, if she executed
it at all, she did so under pressure, and that Bate ought
to have advised her not to execute. The bill also charged
that Bate did not lend her the two sums of 20/. and SOL
which he averred he had lent. On the 15th of October,
1857, a balance was struck between Bate and Codrington,
on which it appeared that 2089/. Ss. 4(2. was due to Bate
from Codrington. On the same day Codrington requested
plaintiff to accompany her to Bate's office, and when there
told her in Bate's hearing that her signature was required
as a matter of form, but that nothing would ever come of
it. Bate made no observation, and the plaintiff there-
fore believed that she was in truth about to sign some
formal document which would not in any way affect her.
Both Bate and Codrington, however, procured the phun-
tiff to sign and deliver to Bate the following bill of
exchange and promissory note : —
CASES IN CHANCERY.
673
"JE1259 : 17 : 8
of £1259 : 17 : 8.
Bridgewater, I6th Oct., 1867.
Three months after date pay to my order the sum
Value received.
•^!^
To the Rev. Henry Codrington
and
''^{^ o
55
h
g S Robert Bate.
& 'S r<^ >* -<
M o o 5 Bd
Miss Sophia Rhodes, Wembon." ^ (§ «^ g S
«S
1866.
StatemenU
«£800
We jointly and severally promise to pay to Robert Bate,
of Bridgewater, gentleman, or his order, the sum of £800,
with interest for the same, at the rate of £5 per cent, per
annnm, valae received, this 16th day of Oct., 1867.
Henrt Codsinoton.
Sophia Rhodes."
At the same time and place Bate, in the presence of
Codrington, produced to plaintiff for her signature, and
Bate induced her to sign, the following agreement: —
*' Whereas I the undersigned, Sophia Rhodes, am now
jointly indebted with the Rev. J. C. Codrington to
B. Bate, of Bridgewater, gentleman, in the sum of 3212.
lOs. secured by bonds; 800/. secured by a promissory
note ; and 12592. I7s. Sd. secured by an acceptance; and
I am also indebted to Messrs. Sealy in the sum of 8622.
I8s, 6d., or thereabouts, and to William Turner, yeoman,
and George Richard Turner as surety for the said H.
Codrington, in several sums of money : Now, therefore,
for better securing the repayment of all and singular the
several sums of money for which I have become surety
for the said Henry Codrington as aforesaid, I have this
day deposited with the said Robert Bate, on behalf of
himself and the said several other parties, a certain in-
674
1866.
Rhodes
V.
Batb.
Statement,
CASES IN CHANCERY.
denture of mortgage of premises at Islington from J. and
W. Clements and others to me, for securing 38802., and
the title deeds relating to the said premises; and I hereby
declare that the said mortgage and the title deeds shall be
held by the said Robert Bate as a security for him, and to
the said several other parties, and shall not be redeemed
or redeemable by me until all money due jointly from the
said Henry Codrington and myself shall be fully paid and
satisfied. And I hereby undertake and agree, at any
time hereafter, at the request of the said Kobert Bate
and at my costs, to execute a transfer of the said mort-
gage to him and the several other parties aforesaid^ for
securing the payment of the sums of money so jointly due
from the said Henry Codrington and myself.
" Witness my hand, this 16th day of October, 1857,
" Sophia Rhodbs.
" Witness, William Plowman."
The defendant Bate thereupon took possession of the
plaintifi^s mortgage, which, on the 11th of January, 1862,
was transferred to the defendant Francis Brice. The bill
' did not impeach the said transfer, or the conduct of
Francis Brice, so far as concerned Francis Brice ; but it
alleged that the defendant William Brice, who acted for
Francis Brice, was privy to the transaction whidi was
effected by Bate and Codrington.
The plaintiff denied that she was liable to Messrs.
Sealy, but alleged that if she ever joined in notes to
these gentlemen she did so under pressure, and was not
liable in equity.
It appeared by the evidence that the plaintiff was liable
to Messrs. Sealy in the sum of 862Z. 18*. 5d. On the
24th April, 1860, Robert Bate and Henry Codrington
told her it was necessary for her to sign the following
document, which she accordingly did : —
CASES IN CHANCERY.
675
*^ Whereas the several sums of 321/. lO^., 800/., and
1259/. 17s. Sd., in the annexed memorandum of deposit
mentioned to be due and owing to Bobert Bate from
Sophia Bhodes and H. Codrington, are still due and
owing to him, but all interest has been paid, as Robert
Bate hereby admits : And whereas Kobert Bate, at the
request of S. Bhodes and H. Codrington, hath this day
paid Messrs. Sealy 862/. IBs. 6d, mentioned in the an-
nexed paper to be due from them, with interest and costs,
amounting to 973/. Zs. Id: And whereas S. Rhodes and
H. Codrington have this day made and given their joint
and several promissory notes of even date to the said R.
Bate to secure 148821 5^., being amount paid to Sealy,
and 515/. Is. ll^/., this day lent by Bate to Codrington
with interest, and Sophia Bhodes hath agreed to charge
the sum 3880/. due to her from Messrs. Clements on
mortgage of hereditaments in Islington, the mortgage and
title deeds of which are now in Bate's eustody, with pay*
ment of the said three several sums of 321/. 10^., 800/.,
and 1259/. 174. 8d., so due as aforesaid, as of 1488/. 5s.
this day lent and secured by the said note, with interest,
and she doth declare that, the said sum of 3880/., nor her
estate and interest in the premises, shall be redeemed or
redeemable until full payment, as well of the said sum of
1488/. 5s. now advanced, with lawful interest, as of the
said several sums of 321/. 10^., 800/., and 1259/. 17^. Sd.,
and the interest thereof respectively.
" Witness my hand this 24th day of April, 1860.
" Sophia Rhodes."
1S65.
Rhodes
V.
Batb.
Statement.
The bill alleged that no valuable consideration was
ever given to the plaintiff for joining in the said note.
That the plaintiff never asked Bate to pay Messrs. Sealy.
That Robert Bate never asked her for any authority to
prepare the said agreement, and she never gave it. That
Codrington never told her for what purpose she was re-
676
CASES IN CHANCERY,
1865.
Statement,
quested to go to Bate's office^ and that neither he nor
Bate ever explained that the effect would be to make her
liable to pay the amount secured thereby. The bill
charged that it was the duty of Bate to have informed
her of the effect thereof^ and that it ought to be de-
clared that the said agreement is not binding on the
plaintiff.
The bill alleged that in the account in Bate's ledger
against Codrington was the sum of 4637/. 7^. ld.y for which
he claimed to hold security from the pldntiff for
3769/. 12«. 8d. Under these circumstances the bill
charged that Bate, in collusion with the defendants
William Brice and Codrington, contrived the plan which
Bate afterwards carried into effect by obtaining payment
to himself of the sum of 3880/., secured by the mortage
on the Islington property, and of paying himself out of
her fortune. The bill then set out the circumstances of
the transfer of the mortgage to Francis Brice, and alleged
that under coercion and misrepresentation the plaintiff
allowed William Brice to pay to Bate, instead of to her-
self, the sum of 3856/. 12^. 2d.y part of the said sum of
3880/. ; Robert Bate caused to be paid to her the sum of
23/. 7*. lOd.
The plaintiff, on the Ist of July, 1863, filed this bill
praying that it might be declared that the instruments of
the 8th of November, 1854; the I5th of October, 1857;
and the 24th of April, 1860, were improperly obtained
from and were not binding on the plaintiff.
Secondly : That it might be declared that Bate obtained
the said sum of 3856/. I2s. 2d. by coercion, undue in-
fluence, and misrepresentation, and might be decreed to
repay the same to the plaintiff with interest at 5/. per
cent..
Thirdly : That if necessary an account might be taken
of the sums of money (if any) lent by Bate to the plaintiff,
and that, less what he should be found to have advanced,
CASES IN CHANCERY.
677
he might be decreed to repay to the pliuntiff the balance
of the said 3856/. I2s. 2d. with interest/
Fourthly : That William and Francis Brice might be
ordered to deliver up to be cancelled the two documents
of the 15th of October, 1857, and the 24 th of April, 1860 ;
and that the bond, bill of exchange, and promissory notes
might be amended by striking out the plaintiff's name ;
and that it might be declared that the covenant for repay-
ment of the 3880/. was obtained from the plaintiff with-
out consideration, and was not binding on her ; and, if
necessary, for an injunction.
The defendant by his answer admitted generally that
he had acted at times for the plaintiff, but denied that he
was her regular professional adviser ; he denied also the
use of any undue influence, and alleged that the plaintiff
was a shrewd woman who understood business matters
thoroughly.
A great part of the evidence was on the question
whether Bate had been the professional adviser of the
pliuntiff, and also on the question of the competency of
the plaintiff.
Mr. Rolty Mr. Greene, and Mr. fV. JV. Karslake, for the
plaintiff, contended that the evidence clearly proved that
the defendant Bate acted as the professional adviser, and,
that relation being established, the influence was an
inference of law, and, if so, the transaction could not
stand : Oibson v. Jeyes (a), Morgan v. Higgins (J), Davvt
V. Parry (c).
Secondly: they contended that Bate, through her
brother-in-law, had made use of undue influence, and on
that ground also the transaction could not be supported :
Anderson v. Elsworth ((/), Huguenin v. Bazely (e), Norton
1805.
(a) 6 Ves. 266.
(6) 1 Giff. 270.
(c) Ibid. 174.
{(l) 3 Giff. 154.
(c) 14 Ves. 273.
Statement.
Argument,
678
1865.
Argument,
CASES IN CHANCERY.
V. Relly (a), Hoghton v. Hoghton (A), Baker v. Bradley{c\
Dent V. Bennett* {d)y Maitland v. Irving {e\ Archer v.
Hudson (f).
The issues of fact raised by the bill were in the Vice-
Chancellor's opinion clearly proved by the evidence.
Mr. Bacon and Mr. Freeling^ for the defendant Bate,
contended that the evidence clearly showed that Bate was
never the plaintiff's professional adviser, except in the
matter of her will and in investigating her accounts. The
professional relation, if it could be called such, had long
terminated when the transactions complained of occurred.
The cases as charged in the bill and established by the evi-
dence were different. Looked at in its true light, the case
was one of suretyship, but the liability of a surety could
not be got rid of by alleging that the principal debtor
exercised undue influence over the surety: Hunter v.
Atkins (g), Oldham v. Hand{h).
The plaintiff to entitle herself to relief must make out
either fraud or undue influence on the part of the person
against whom she sought relief, and that proposition of
law was in effect admitted by the bill, but the evidence
fell short of the allegations : Blackie v. Clark (i). Waters
V. Taylor {k)y Blagrave v. RotUh (I), Welles v. Middle^
ton (»i).
It was submitted, therefore, that the bill must be dis^
missed with costs.
Mr. Matins and Mr. Btckley Rogers, for the defendant
(a) 2 Eden. 286.
(6) 16 Beav. 378.
(c) 7DeG.M.&G.597.
(i) 7 Sim. 539.
(c) 15 Sim. 437.
(/) 7 Beav. 651.
(g) 3 M. & K. 113.
(A) 2 Vea. sen. 259.
(») 15 Beav. 596.
(A;) 2 M. & Cr. 526.
(0 2 K. & J. 609.
(m) 4.B.P.C.246.
CASES IN CHANCERY.
Brice, submitted that no case had been made out against
them^ and the bill must therefore be dismissed with costs.
Mr. Bolt replied.
The Vice-Chancellob reserved his judgment.
The Vice-Chancellob : —
The result of the transaction mentioned in the pleadings
and evidence in this cause is that the whole of the plain-
tiff's property, except a balance of a little more than 20L,
has passed into the hands of the defendant Mr. Bate in
payment of debts due to him by the defendant Codrington,
without any benefit or any valuable consideration what-
ever accruing to the plaintiff.
During the whole of the transactions the plaintiff was
residing and had been for several years residing in the
family, and as a member of the family, of the defendant
Codrington, who was married to her sister. She was much
attached to him, and to her sister, and to their children.
All the transactions which are impeached by her in this
suit took place after she was fifty years of age, as it ap-
pears she was born in the year 1803. That the defendant
Codrington had very great influence over her, and used
that influence to his own advantage, is beyond doubt.
As to the defendant Bate, he was the professional ad-
viser and firiend of Codrington. One material question
in the case, as a question of fact, is whether the defendant
Bate had so acted as the plaintiff's professional adviser as
to stand in that relation of confidence towards her, pro-
ducing influence over her which can bring the case within
the doctrine of this Court which invalidates acts of bounty
unless there be clear evidence of circumstances sufiBcient
to show protection against undue influence.
It can scarcely be said that the right of the plaintiff to
relief against Bate depends upon proof that he was the
679
ISdft.
Rhodbb
r.
Batb.
iirfiiiii«ii^.
May Sr<i.
Judgment,
680
CASES IN CHANCERY.
1865.
Rhodes
V,
Bate.
Judgment.
confidential legal adviser^ and stood in a position which
gave him great influence over her.
There is little reason to doubts upon the result of the
evidence^ that, whether Bate was her confidential legal
adviser or not, he was well aware of the influence which
the defendant Codrington had over her. He certidnlj
had ascertained the amount of her fortune, and it cannot
be doubted that he gave credit to Codrington in the con-
fidence that the influence of one or both of them would
induce her to become surety for Codrington. Indeed, on
the occasion of the last transaction Mr. Bate says that
before she. executed the deed on the 24th of April, 1860,
he warned her that from the state of Codrington's afiairs
it was quite clear that he would not be able to repay her.
Lord Eldon said in Hugtienin v. Bazely (a) that he
should regret if* any doubt could be entertained that it is
not competent to a Court of Equity to take away fiom
third parties the benefits which they have derived from
the undue influence of others.
But the evidence in this case proves that on various
occasions the plaintiff employed Mr. Bate as her profes-
sional adviser. On this point, however, there are some
denials in the answer of Mr. Bate very express and
positive. He denies that she employed him to alter her
will in December, 1853. In the eleventh paragraph of
his second answer he says, " I deny that I was in the
month of November, 1855, the plaintiff's professional ad-
viser ; and I do not know and 1 cannot set forth as to my
information, belief, or otherwise, who was her professional
adviser."
As to his having been consulted by the plaintiff in
December, 1853, as to her will, an occasion on which she
showed the will she had previously made, the evidence of
the plaintiff's sister, and of tlie plaintiff herself, is too cir-
(a) 14 Ves. 278.
CASES IN CHANCERY.
681
camstantial and clear to be disregarded^ Mr. Bate admits
that he was employed to make her will in 1855. And as
to his having acted as her professional adviser during the
year 1855, the letters and the bills of costs of Mr. Stephens,
who acted as his London agent (on Mr. Bate's recommen*
dation and with Mr. Bate's assistance), besides the other
documentary evidence on this part of the case, are con-
clusive, and the more so because Mr. Stephens has not
been brought forward to say anything in contradiction or
explanation of the purport of the documents.
It was on the 24th of April, 1860, that the ultimate
security which in fact exhausted the plaintiff's property
was given to Mr. Bate. The account which he himself
gives in the 37th and 38th paragraphs of his first answer
of this transaction, and his description of the explanation
and monition which he then gave her, show how much in
his own opinion she required protection and assistance
against the influence under which she was then acting.
No distinction can be made as to that part of the debt
to Bate which was incurred by his paying oiF the debt to
Sealy. It is true that Mr. Bate does not seem to have
had any hand in the original voluntary obligation of the
plaintiff to Sealy for that sum, but he was no stranger
to the influence under which it had been given, and he
was himself the actor in the transaction of October, 1857,
and prepared the memorandum of deposit by which the
plaintiff^s property was pledged, to himself to secure the
debt due to Sealy as well as the debt due to himself.
Upon a £sdr consideration of the evidence it seems plain
that the defendant Bate took advantage of the influence
which the defendant Codrington and he himself had over
the plaintiff. There must, therefore, be a decree against
both these defendants to make good to the plaintiff all her
property which the defendant Bate thus acquired.
As to the defendant Frederick Brice, he and the other
defendant, William Brice, have been made parties to this
VOL. IV. Z Z
1865.
JtutgminU
682
CASES IN CHANCERY.
1865.
Judgment,
suit in consequence of the objection taken bj the defen-
dant William Bate.
They are no doubt properly made parties. The costs of
the defendant Austin Brice must be paid in the first
instance by the plaintiff, and the amount must be added
to the costs which the defendants Bate and Codrington
must be decreed to pay to the plaintiff. It has been at-
tempted to make a distinction as to the costs of the defen-
dant William Brice. He certainly acted as the solicitor
of the plaintiff in the transaction of the transfer of the
securities^ but he was in no way involved in the creation
of the obligations which deprived the plaintiff of her pro-
perty.
The transfer put Mr. Bate in possession of the money,
and Mr. William Brice is properly a party to this suit in
the character of a trustee in that transaction.
On these grounds the costs of William Brice ought, I
think, to be provided for in the same way as the costs of
the defendant Austin Brice, and be ultimately pud by
the defendants Bate and Codrington.
CA<E^ IX CHANCERY. ^;$3
MACKINTOSH r. THE GREAT WESTERN J^^ ^ J^f^.
RAILWAY COMPANY. ^Ji^m^kV
X his bill was filed in 1847 by the original plaintiflTy David wiH^vts t^n th«
Mackintosh, contractor, against the Great Western RuiU |*f7*<^ljj|'jl{j?
way Company ; Mr. Saunders, their secretary ; and Mr. S***^' **^«mml
Brunei, their engineer. The case has been repeutedly liiU)uri)tm«
before the court (a) and several of the parties to the muttormor
original suit are dead; the suit has been subsequently ^^r"!^""*"^"**^
revived against their representatives so far as it was neccs- wmiMict wUh
» mHwny com-
sary. pnuy ft>|. \vt>vH«
The original plaintiff, David Mackintosh, had entered ^^J^;;";;"
into seven principal and other subordinate contracts for <?*»*«'< ^l^ri^'*
the construction of the railway works near Slough and ntWr n
part of the line between Bristol and Bath, and clainunl nmhliitiliii! m-
over and above what had been paid large sums as duo on |;«»^«*"«"* <J»»
the contract. On the 30th May, 1855, the Court referred ^-""ft will not
it to chambers to enquire and certify whether anything mnountHqoar-
and what remained due to the plaintiff in respect of the t^HmUiiTo
works executed and materials supplied under the sovoral »*»"wliol«or
contracts in the pleadings mentioned, having regard to the uiiinHHuomifuir
terms of the contract respectively, and to the circuin- op mimift^wt "
stances under which the plaintiff carried on the works. Jh"wu!* tn
In pursuance of the direction the chief clerk made his »'»«'» <'""•
./. 1 • . 1 1 /• 1 1 1 tho cm-illUmto
certificate, by which he found a gross sum due to the Hhouia not \m
plaintiff, but, the company being dissatisfied with the ^roun,/wVu"h
decision on the ground that the items were not specified, '^""''^ "'*' ''" *
® ^ ' , Kroiiriil for
appealed to his Honour, who approved the certificate. fnoviri» for a
nnw triiit, or
M;ttlri« nuiiln
(a) 2 De G. & Sm. 758 ; 2 M. & G. 174 ; 14 Do G. & Hm. 544 ; i\m vnMlict of
3Sm.&G. 146. •J"7- .
vfUmn by •
cfmlrut'.i M mum
of money U payable at a time certain, and upon a lom to be UiCiriHlnful on rjurtmn tUttttf
but a dupute occnrt as to the amount winch i* Mttled by the 0*urt Iriterent hi payahl*
under the Statute 3 & 4 Will. 4, c. At,
Z 7s 2
684
CASES IN CHANCERY.
Thb Great
Wbstbrn
Railway
Company.
Statetnent.
1864. The company appealed against this decision, and the
Mackintosh Lords Justices allowed the appeal and directed the chief
clerk to amend the certificate by stating the details. The
chief clerk, in pursuance of the order, certified that a sum
of nearly 200,000/. was due from the company. To this the
defendants moved to vary this certificate as to more than
900 items. The plaintiff also moved to vary the certificate,
objecting to the disallowance of certain sums for ashlar
work, and other matters amounting to upwards of
100,000/.
The case also came on for further consideration. The
chief clerk had allowed interest at 4 per cent. This
question, and that of the costs of the suit, were also
raised.
Argument. The Attorney ^ General and Mr, F. J. Millar appeared
for the plaintiffs : —
They supported the certificate, but further submitted
that if the defendants' exceptions were allowed the plain-
tiff's counter-exceptions must be allowed also, though
otherwise the plaintiff would be contented to take the cer-
tificate.
On the subject of interest they cited — Davis y. Smyth
(a), Fare v. Ward (A), Mildmay v. Methuen (c), AshweU
V. Staunton (c/), Swynfen v. Scawen (e\ Lowndes v. Coh
lens(f)y Upton v. Lord Ferrers {g\ Marshall v. Poole{h)y
Lucas v.. Temple (i), Fenton v. Crichett (A), Shewell v.
Jones (/), Ee Catlin (»i), Alsop v. Lord Oxford (n).
As to interest on a building contract they cited — Hyde v.
(a) 8 M. & W. 399.
(6) 3M.&W.25.
(c) 3 Drew. 91.
(d) 30 Beav. 62.
(c) 1 Ves. Sen. 99.
(/) 17 Ves. 27.
{g) 5 Ves. 800.
(h) 13 East, 98.
(0 9 Ves. 300.
{h) 3 Mad. 496.
(0 2 Sim. & St. 170 ; 3 Russ.
522.
(m) 18 Beav. 508.
(n) 1 M. & K. 564.
CASES IN CHANCERY. 685
Price (a); 3 & 4 Wm. 4, c. 42, 8. 28, They also claimed 1M4.
the costs, on the groand that the defendants had been Mackintosh
guilty of vexatious conduct in delaying the settlement of ,^^ grbat
the plaintiffs chum. 2^"7"*:
* KAI l«WA T
Company.
Mr. Bacouy Mr. Matins^ and Mr. T. Stevens appeared Argument.
for the company.
They submitted, first, that the Court had no jurisdiction
to entertain the suit. They cited Parker v. Hutchinson
{b). Young v. Walter (c).
Secondly, they contended that the decision of the chief
clerk could at most be regarded as the award of an arbi-
trator, who was bound to decide according to the rule of
law.
Thirdly, on the question of interest, they contended,
first, that, there being no decree for interest, the Court
had no power to give it : Creuze v. Hunter (rf). And,
secondly, that, there being no agreement to pay interest,
and the money not being payable on a day certain, no
interest could be given: Higgings v. Sargent {e\ Hare
V. Richards (/), Bushnan v. Morgan (g), Foster v. Wes*
ton (A), Rhodes v. Rhodes (i). Tew v. Lord Winterton
(A), CaJton V. Bragg (J)y Gordon v. Swan(jn\ Cameron
V. Smith {n).
And, lastly, on the question of interest, they contended
that the plaintiff, having claimed excessive prices, ought
not to be allowed interest': Duchess of Marlborough v.
Strong (o).
On the question of costs they contended that the plain-
(a) 8 Sim. 678 ; s. c. 6 L. J. (h) 6 Bing. 709.
358. (0 Johnson, 653.
(b) 3 Ves. 133. (*) 1 Ves. 451.
(c) 9 Ves. 364. (I) 15 East, 223.
Id) 2 Ves. 157. (ot) 12 East, 419.
(c) 2 B. & C. 348. (n) 2 B. & Aid. 305.
(/) 7 Bing. 254. (o) 1 B. P. C. 175.
Ig) 6 Sim., 635.
686
CASES IN CHANCERY.
1865. tiflp» by having claimed enormous sums beyond what was
Mackintosh allowed, had, in fact, occasioned the litigation, and ought
to pay the costs of the suit, or, at all events, ought not to
be allowed costs.
THB ORBA.T
Wbstbrm
Railway
Company.
•/un« 28.
Judgment,
The Vice-Chancellor : —
There is now before the Court a motion by the defen-
dants to vary the chief clerk's certificate as to more than
900 items. Each of these items has been the subject of
argument.
The evidence on which all this must be disposed of,
and the arguments upon that evidence, have been sepa-
rately considered, and this Court has now for the fourth
time to deal with them.
If it had appeared at the hearing of the cause that the
Court could have disposed of the case without further
investigation, the proper decree on the frame of the bill
would have been for the payment by the defendants to
the plaintifi* of one single gross sum due to him for the
construction of the works.
In matters of account there is a concurrent jurisdiction
at law and in equity. But this being a suit by a contractor
to recover the amount due for work and labour and ma-
terials supplied, and not a bill for an account properly
so called, the defendants have disputed the jurisdiction of
this court No doubt the nature of the investigation and
of the evidence would differ much from what is usual in
a decree for an account.
The authorities, however, show that this Court has
entertained such cases; and Lord Cottenham, in the case
of The North-Eastern Railway Company v. Martin (a),
held that where circumstances seemed to make it con-
venient this Court ought to exercise the jurisdiction.
Whether the remedy be at law or in equity, the proper
(a) 2 Phill. 758.
CASES Di CHANCERY.
687
Thb Grkat
Wb^tbrn
Railway
Com PAX Y.
Judgmentm
course must be to determine by a proper investigation the IM&.
reasonableness of the phiintiff's demand& Neither in this mackintosb
Court nor at law can it be the proper course to have a
separate adjudication on each item separately considered.
The course is, to investigate each item with reference to
other items, and on a consideration of all the circum-
stances bearing on each, with reference to the whole, to
fix the total sum which ought fairly to be allowed. If
this Court, assuming a jurisdiction in a case which accord-
ing to the usual course would be dealt with in a court of
law, does not mould its proceedings so as to make them in
a due d^ree conformable to those of the more proper and
ordinary jurisdiction, the result will probably be incon-
yenient and mischievous.
The chief clerk in the certificate before the Court has
stated the result of an elaborate investigation, and has
also, in compliance with the wish expressed by the Court
of Appeal, stated details of the particulars of demand
which have enabled the defendants to bring before the
Court a motion to vary the certificate as to more than 900
items. The amount of one item as to which the defen-
dants have raised a dispute (No. 12 of 6 B.) is the sum
of threepence. As to another the sum in dispute is nine-
pence. There are fifty-three items each under 1/., and
145 items under 6L
No such proceeding could be allowed before a court of
law or an arbitrator, and the intolerable amount of expense
and delay which it would produce is the reason why it is
not allowed. In this court, where the jurisdiction to
settle the amount due for work and labour and materials
supplied is ordinarily exercised in the taxation of a
solicitor's bill, when on the investigation before the tax-
ing master he has decided as to an item the Court does
not permit an application to vary his decision as to par-
ticular items, although it will sometimes permit an appeal
against his decision as to a class of items to the whole oi
688
CASES IN CHANCERY.
Thb Grbat
Wbstbrn
Railwat
COVFANT,
Judgment,
1865. which one principle may apply. It was so settled by
MACKZNToaH Lord Eldon in Lvjcas y. Temple (a). In the case of
receivers' accounts the Court in like manner refiises ap-
plications to vary as to items. (See Fentan v. Cricket (i) ;
Shewel V. Janes (c) ; Re Catlin (d) ; Ahap v. Lard Ox--
ford (e). Where the Court referred accounts to an arbi-
trator and directed accounts to be taken in like manner as
before a master^ and the arbitrator made his award without
setting forth the items but stated the general result, ex-
ceptions on the ground that he had not stated the particular
balances, or how the general balance was arrived at, were
ovemded; and the Court said "it would be of nus-
chievous consequence if, wherever the Court sends com-
plicated accounts to arbitrators, they should set out all
the particulars. It is much better that the award should
be made in the short way it is." This was in a case of
account properly so called : Dick v. Milligan{f).
A case of Smith y. Smith (^) was mentioned in the
Court of Appeal, but it seems to have no application
whatever to questions of this kind. It was a case under
the old practice, now fortunately abolished, in which the
Court condemned the report of the Master because it
merely referred to the accounts as filed in his office and
did not set them forth. It appeared that copies of the
accounts were necessary to make the report intelligible,
and that the reason for not setting them forth was the
disgraceful and corrupt purpose, that the parties should
pay fees to the Master's derk for obtaining copies.
It is important to observe that the Act of 15 & 16 Vict,
c. 80, 8. 69, has now regulated the form of the chief clerk's
certificates, and has enabled the parties to obtain, during
the progress of any inquiry or account, the opinion of the
(a) 9 Ves. 300.
(h) 3 Madd. 496.
(c) 2 S. & St. 170 ; S. C, 3
Rus. 622.
(d) 18 Beav. 608.
(e) 1M.&E. 664.
(/) 4B.C.C. 117.
(g) Dick. 789.
CASES IN CHANCERY.
689
Wkbtbrn
Railway
Company.
JwigmnU*
judge upon any particular point or matter arising in the ^^'
course of the investigation. Mackintosh
The items which have been disputed on the present thb Great
motion for the most part involve questions of compensa-
tion and of estimate on the quantum meruit^ on which
probably no two men would agree. Even one man,
although a competent judge, might at different times
arrive at different results, according to the force with
which particular circumstances might strike his mind;
and yet it might not be easy to say that either of the
different conclusions was wrong.
It is for this reason that the law refers such questions
to a jury. The sum which the whole jury agrees to fix
as a proper, although it may be a sum on which, perhaps,
no two of the jurjrmen, each acting separately on the
dictates of his own understanding, would have fixed, yet,
being agreed to by the jury on a compromise of opinion,
is accepted as conclusive. Any other principle must lead
to an extent of vexatious litigaton, perhaps interminable.
After having heard the defendant's counsel for twenty-
three days in support of the motion to vary the certificate
upon each of the prodigious number of items, which have
been erroneously treated by them as insulated decisions,
I think the result is this — that upon no one of them has a
case been made out which would be considered a sufficient
ground for ordering a new trial at law. It is not enough
to show that it is doubtful whether the decision embodied
in the certificate, treating that decision as a verdict, is
certainly correct, or is perfectly satisfactory, or that some
other amount would, in the opinion of the Court, be more
more proper. None of these are sufficient grounds for
disturbing the finding of a jury, nor is there any authority
for saying that all or any of these grounds would be suffi-
cient to justify the Court in finding on the certificate.
In the case of Carstairs v. Stein (a) a new trial was moved
(a) 4 M. & Sel. 102, 200.
690
CASES IN CHANCERY.
Thb Gkbat
Westbkn
Railway
Company.
Judgment.
1866. for, and, although the Court thought the jury might have
Mackintosh come to a more satisfactory conclusion, yet it refused to
direct a new trial or disturb the verdict. Lord EUen-
borough said, " The Court, in granting new trials, does
not interfere unless to amend some manifest abuse, or to
correct some manifest error in law or in fact.*^
This principle rests on the plain necessity of accepting
as final the first decision on a fair investigation, where
the nature of the question is such that, if there must be
a new investigation and new decision by a succession of
appeals, each decision might be for a different amount,
and the decision of the last resort, differing firom all the
others, would have against it the presumption of error
from the number of previous contrary decisions. The
result would be to deprive the decbion on final appeal
of that authority which an ultimate decision should carry.
It is to prevent such inconvenient consequences that
questions of this peculiar kind, when once fairly investi-
gated and decided, are not usually allowed to be opened
again, or the decision to be disturbed, except on the
strong ground of manifest error or manifest abuse ; and
never on the ground that a different result might be more
satisfactory to the mind of another tribunal.
If I had yielded to the impression produced as to some
of the items on an insulated view, very sufficient reasons
might be given for varying the certificate ; but it would be
a fallacious mode, and to my mind an unjustifiable mode,
in a case of this kind, to deal with the separate items by
a final adjudication upon each, without a view to the gene-
ral bearing of the allowance of each item by reference to
other items and to the whole ultimate amount, and to all
the circumstances of conduct, and to the general purport
of each contract, and to all these provisoes which as to
many of them are of difficult contruction.
If I am wrong in this view, the correction of it will, I
hope, extract some luminous exposition of the principles
CASES IN CHANCERY. 691
on which such cases should be treated in this Court; 1B65.
but, unless at least the same amount of labour is bestowed mackintosh
upon this case as has been bestowed upon it already dur- .p^^ grbat
ing the five years of careful examination of the evidence. Western
and correspondence, and the pleadings in my chambers, * Com pant.
and the full discussion recorded in the enormous mass of judgmmt.
shorthand-writers' notes of the proceedings on which the
chief clerk's certificate is founded, the variation of the
certificate would, to my mind, be not only an unsatisfac-
tory thing, but a thing unjustifiable.
To illustrate these views, it may be proper to refer to
one or two of the questions argued during the twenty-
three days occupied by the labours of the defendants'
counsel. One item as to which they asked to vary the
certificate is No. 31 in the contract 3 D, where 20/. is
stated as a proper sum to be allowed for four gates. The
defendants insist that only 14Z. should be allowed, that is,
at the rate of 3/. 105. for each gate, instead of 5L each.
On what evidence is the sum of 14/. ascertained? On
nothing but an affidavit by Mr. Brunei, who says that he
considers 3/. 10^. for each gate enough: he does not say
that he ever examined the gates. The plaintiff's evidence
goes to prove that 5/. is the proper charge. I know no
safe ground on which the decision of the chief clerk on
such a point as this is to be disturbed. Other items are of
a more extraordinary nature, and show still more strongly
the wisdom of the rule that the decision of such ques-
tions, once arrived at after a fair investigation, ought not
to be disturb, because of mere difference of opinion on a
matter of estimate and compensation, where the perfect
accordance of any two persons as to exact amount can
scarcely be expected. The item No. 141 of 3 B Exten-
sion Contract, is an allowance for compensation for great
expense and delay occasioned to the contractor by the
occurrence of an extraordinary circumstance. It appeai*s
that, while he was pressing forward his operations in per-
692 CASES IN CHANCERY.
1865. formance of his contract^ the remains of a Roman villa
Mackintosh were discovered. Upon this discovery the engineers of
The Great *^® defendants, in order to preserve this interesting and
Western valuable object, ordered the operations to be stayed, and
Company/ fences to be constructed. All this was necessarily and
Judgment, obviously the cause of loss and expense to the con-
tractor.
Upon this item three counsel for the defendants have
argued in support of the motion to vary the certificate,
insisting that there was no evidence before the chief derk
to justify the amount allowed. The argument was sup-
ported by reading irrelevant passages from the evidence,
and some passages from the shorthand-writer's notes of
the proceedings before the chief clerk. But, on referring
to the chief clerk's notes, and referring also to the full re-
cord of what took place before him, it appears that the
matter underwent, as all the other items did, a long and
laborious investigation before him. Plans, letters, docu-
ments, and books were examined before him, and discussed
on both sides. It clearly appeared from these, as it ap-
peared to me on the discussion of the motion, that there was
sufficient evidence that a heavy loss had been occasioned to
the contractor, in respect of which justice required that he
should have a fair compensation. Many modes of esti-
mating that compensation might be suggested, and many
objections might be stated to any mode of estimating it
It is highly probable that if, without any previous investi-
gation or decision, the matter had come before the Court
for the first time on this motion, a difierent amount, and
perhaps a different mode of estimate, might have been
arrived at. But where the Court is called upon to review
and alter the amount once fairly fixed on a fair and full
investigation, there is no safe ground for an alteration un-
less some manifest error or miscarriage can be shown.
It is enough to say, as to the whole of the defendants'
900 objections, that it seems to me to be the duty of the
CASES IN CHANCERY.
693
The Great
Western
Railway
Company.
Judgment,
Court to deal with them all on the same principle. No 1866.
manifest error appearing, no miscarriage, and no abuse, mackintosh
the nature of the question is such that the decision once
fairly arrived at should not be disturbed. If as to all or
any of the items ^primd facie case of manifest error or
abuse had appeared it would have been the duty of the
Court to examine the record of what took place before
the chief clerk. It could scarcely be justifiable to vary
the result found by the chief clerk without an investigation
as full and as accurate as that which took place before
him, not only as to the one particular item, but (inasmuch
as, in such a case, the allowance or disallowance of most
of the items has been by reference to the circumstances
influencing the allowance or disallowance of others) from
the bearing which each has upon the others^ and upon the
general result of the whole investigation.
The enormous bulk of the shorthand-writers' notes of
the proceedings before the chief clerk, and before myself
in chambers, would not have deterred the Court from this
investigation if the necessity for it had occurred. One of
the judges of the Court of Appeal has already mentioned
the danger in this case of taking any short cut, and there-
fore a shorter examination and discussion than that which
has taken place in my chambers during the five years
would be improper and illusive. But I can see no ground
for exposing the parties to the oppressive expenditure and
delay of such a course of proceeding, even if the litigation
had not lasted for nearly twenty years. I know no
authority for the administration of justice on such a scheme,
and I decline to entertain it.
There are, however, two points which have been put in
the foreground by the defendants on this motion to vary
the certificate, which deserve particular attention.
The first is as to a sum of 19,882/., said to have been
improperly allowed on the contract, 3 B Extension, for
the Tiverton tunnel.
694
CASES TN CHANCERY.
Thb Great
Western
Railway
CoMPAvr.
Judgment*
1865. The other is as to the contract 6 B, whether the sum
Mackintosh is 17,000/ or 16,600/.
The questions on these two matters are of a different
kind from those which arise on the other items, and the
observations already made as to the danger of disturbing
the amount once awarded by a competent authority for com-
pensation or damages, or remuneration, are not applicable.
But at the hearing of the cause these two points, which
are both raised on the pleadings, and on both of which
much evidence was given, was fully discussed. They
might have been disposed of by the decree, but there
seemed to me good reason for thinking that the investi-
gation which the whole case must receive in chambers
might produce something to throw more light upon both
points, and therefore they were both left open. On re-
ferring to my notes of what took place at the hearing of
the cause, and looking at the evidence then before the
Court, if it had been necessary to decide at that time, I
should have felt bound to decide them both in favour of
the plaintifil
What has taken place in chambers, and the result of
the argument on the motion to vary the certificate, con-
firmed that view. The notes of the chief clerk are very
clear as to the ground on which he proceeded. Now,
after the third argument upon them it seems to me un-
necessary to say more than this : — As to the first point,
the evidence shows that the tender No. 2 contains the
terms of the real contract ; and that the tenders 2 and 3
must be read together. If the contractor received the
gross sum of 35,419/. it could make no difference to him
what sum was apportioned for the tunnel, but, if the tender
No. 3 is taken alone, it has no schedule of prices applicable
to the tunnel at all. Moreover, Mr. Brunei, in the 20th
paragraph of his affidavit, says he has an impression that he
said he would recommend the company to allow 35,4 1 9/. I9s.
As to the other point, there was no tender for 6 B for
CASES IN CHANCERY.
695
Thb Great
Wbstbrn
Railway
COVPANT.
Judgment.
any other sum than 17,600/. Mr, Brunei gave the tender 1865.
for the sum of 17960021 to the solicitor of the company as mackintosh
the proper amount.
There is no reasonable evidence that any mistake what-
ever was made in inserting the sum of 17,600/. in the
body of the deed and annexing the tender.
During the whole period of the construction of the
works, and up to the institution of this suit, no other sum
than 17,600/. was mentioned. But during the preparation
of the defendants' answer an ingenious agent found the
sum of 16,500/. mentioned in a paper made out in order
to satisfy Mr. Brunei as to some details, and not made
with any view whatever of altering the tender or the
contract : the controversy was raised by the answer, and
this paper was intended to be evidence that in the deed
deliberately prepared and executed from the instructions
from Mr. Bunnel there is a mistake as to this sum.
On the question of penalties claimed by the defendants
the case has not been very strongly pressed at the bar.
The contract as to penalties was that they should be
deducted firom the amount of the certificates. But this
never was attempted, except in two instances. The
object of the stipulation as to penalties being to induce
the rapid completion of the works, the proper course
would be to deduct them from the certificates during the
progress of the works. But, if not exacted during the
progress according to the contract, the claim cannot easily
be sustained when it is withheld until long after the com-
pletion of the works, and after the company has been in
the full and profitable enjoyment of the labours of the
contractor.
Some stress was laid on the circumstance that errors
in the casting-up of the sums mentioned in the certificate
have been discovered on the second investigation before
the chief clerk. It is well known to every one conver-
sant with accounts and calculations that such errors are
696
CASES IN CHANCERY.
V,
The Gkbat
Wbstbkn
Railway
Company.
Judgment,
1865. unavoidable when there is such a number of items. It is
Mackihtobh possible that some such errors maj still be detected;
during the hearing of this motion more than one other
error of that kind has been discovered. On questions
of damage or remuneration the possible existence of such
mistakes seems to me no sufficient reason for protracting
an investigation in a case where absolute certainty of an
exact and proper amount is impossible.
There has been before the Court on this occasion not
only the motion of the defendants to vary the certificate,
but also a motion by the plaintifi^ who compluns of the
disallowance of items to an amount altogether exceeding
100,000/.
As to these, tiie Attorney-General, on behalf of the
plaintifi*, has taken what seems a wise and discreet course.
The plaintiff considers that he has been hardly used as to
these disallowances, but he has authorised his counsel to
state that, being worn out with the delays and expenses
of a litigation which seems endless, and finding that the
Court sees no ground for diminishing the amount which
the chief clerk has certified to be due, he prefers taking
now what he can get, rather than continue the contest,
and therefore submits to have this motion refiised without
prejudice to his right to go into it on appeal in case the
defendants shall seek to disturb the order and decree now
to be made.
The motions to vary the certificate being thus disposed
of, it is proper to determine the questions which arise on
the further consideration of the cause.
There is, therefore, the important question of interest
to be decided. It became a question at the original
hearing whether the decree should contain any direction
as to interest. The bill prayed that interest might be
allowed.
Again, it became a question during the inquiry in
chambers whether, as the decree was silent on the subject.
CASES IN CHANCERY.
V,
The Great
WSHTBRlf
Railway
GOVPAHT.
Judgment,
the question of interest should be dealt with in chambers 1866.
or should be reserved for the decision of the Court at the magkihtosh
hearing on the further consideration.
As 'the decree directed an inquiry which would require
a very long and laborious investigation of the particulars
of the plaintiff's demand, it was thought the more proper
course not to fetter the proceedings in chambers hj any
express direction as to interest, but to leave the question
open. But on the investigation of the plaintiff's demand
in chambers there were obvious reasons for entering into
the question of interest, and dealing with it on the cer-
tificate ; and I directed the chief clerk to deal with it.
If it had been omitted in the certificate, and left for further
eonsideration, it would probably have been contended
that the delay and other circumstances relied on in sup-
port of the claim of interest had not been taken into con-
sideration in chambers in stating the amount due to the
plaintiff.
On the other hand, if the certificate dealt with the
question, and it should be thought more proper for further
consideration, no harm could be done by the certificate
including it, as the argument could conveniently proceed
on a motion to vary the certificate in that respect, and the
court would see that the allowances to the plaintiff's claim
had been made without reference to the question of
interest.
The case of The Dtichess of Marlborough v. Strong {a)
is an authority of some importance. It seems to recog-
nise the doctrine that in cases of this kind, which are
cases of compensation, and not of account properly so called,
where the scale of compensation is fixed at an increased
rate, or what would seem an excessive rate in respect of
what is called shw paymenty interest should not be allowed ;
but that the slow payment must be compensated for ia
VOL. IV.
(a) 4B. P.C.539.
AAA
Judgment,
698 CASES IN CHANCERY.
1865. one way or another, either by allowing interest on the fiur
Mackintosh amount if there had been prompt payment, or by an in-
Thb Great ^^®^®^ allowance in respect of the delay. As to the
WasTBRN general doctrine of this Court it is well stated in Tew v.
Kail WAT
CoMPANr. T^»crd Winterton (ja) that interest may be allowed in cases
where the nature of the transactions and the course of
dealing or other circumstances are such that not a clear
and absolute contract, but a species of contract, for the
payment of interest, may be inferred. The doctrine at
law has been stated by Lord Ellenborough, in CaUon y.
Bragg {h)y in somewhat similar terms. As to the statute
of 3 & 4 Will. 4, c. 42, the construction put upon it in
the case of Mildmay y. Methuen (c), has not been shaken
by any of the arguments for the defendants.
It cannot be said that in this case the time of payment
was not certain, and if the certificates granted by the de-
fendants had been for the proper sums the sum would
haye been certain too. When a dispute arises as to the
sum payable at a certain time, and the proper amount
ought according to the contract to haye been ascertained
at the time which was certain, the result of the litigation
being to settle the amount which was certainly due at the
time, certain interest id payable.
As to the rate of interest, my impression is that 5 per
cent, per annum would haye been a proper sum, and if the
chief clerk had not decided that 4 per cent, should be
allowed, and the question were open, I should, perhaps,
haye allowed interest at the rate of 5 per cent. But, as I
cannot say on a question of estimate that 4 per cent, is
clearly wrong, I feel it my duty, on principle, not to dis-
turb the decision of the chief clerk, as it would certainly
not be a case in which a new trial could be allowed after
a yerdict of 4 per cent.
It is now necessary to decide the question of costs. It
is a question of great importance. In the contracts there
(a) 1 Ves. 451. {fi) 15 East. 223. (c) 3 Drew. 91.
CASES IN CHANCERY. 699
are clauses for the reference of all disputes to arbitration ; ^^'
but the defendants have constantly refused to submit to Mackimtosb
arbitration. This refusal they have persisted in at all f^^^ qrbat
times^ before the litigation, during the litigation, and up W«8t««k
to this stage, which ought to be its conclusion before this Coxpakt.
branch of the Court During the last day's argument, the jud^mtnt
counsel for the defendants repeated that the defendants
had all along refused to submit to arbitration, and that
they refused it then.
This is a material consideration on the question of
costs.
Refusing to adopt the tribunal provided by the contract,
the defendants also refused to submit to the jurisdiction of
this Court. The dispute as to the jurisdiction of this Court
formed a great part of the argument at the hearing, and
was decided by the decree of this Court on grounds and on
a view which unfortunately have been much misunder-
stood. It is net a just view of the present litigation to
say that it was occasioned by the failure of the plaintiff to
deliver proper accounts. It is no part of the contract that
the plaintiff should deliver accounts upon the completion
of the work. On the contrary, a careful considerafion of
the terms and nature of the contracts as to the engineer's
certificates, and of the duties imposed on the defendants
by these stipulations, leads to a very unfavourable view of
their conduct as the cause of this litigation. All that has
been urged so strongly at the bar as to the plaintiff's hav-
ing purposely delayed the delivery of the particulars of
his demand is refuted by the correspondence, and is not
suggested in the answer.
A violation by the defendants of the duties which the
contract imposed on them as to the certificates could not
fail to impose heavy loss and intolerable difficulty on the
plaintiff during the progress of the work. It tended to
make perfect redress almost impossible.
The arguments founded on the observations of Lord
A A A 2
700
CASES IN CHANCERY.
V.
Tbb Gkeat
Wbstbrn
Razlwat
Company.
Judgment.
1866. Cranworth as to the duties of the engineer are wholly in-
MACKIMT08H applicable to the questions in this cause. It is true that
Lord Cranworth said that ^^ the engineer in certifying was
not intended to be an impartial judge — ^he was the organ
of one of the contracting parties." But these and similar
observations by other judges were made with reference to
the question whether, where the engineer was himself a
shareholder, his certificates should be considered void on
grounds applicable to on office purely judiciaL To apply
these observations on a question as to the consequences of
an erroneous or unjust certificate would be absurd. K
the engineer is to be considered as the mere organ of the
employer, as a partisan and not an impartial judge — ^as
one who had a right, as he had an absolute power, to make
his measurements partial, and in such a way as to serve
the interests of the employer whose organ he was — the
whole scope and purpose of the contract is violated.
It now appears clearly enough that great injustice has
been done to the plaintiff in the matter of the certificates.
This, on the question of costs of a litigation, should be
almost decisive. The stipulations of the contract being
stringent in themselves, and binding on the plaintiff, by
the certificates during the progress of the works, the costs
of rectifying the mistakes should be born by the party who
occasioned them, and who has reaped a profit by their ex-
istence and continuation. As to those parts of the case in
which the plaintiff has failed, it is necessary to consider
whether any distinction should be made on the question
of costs. The plaintiff's demand for Ashlar work has
been disallowed, and thereby sums to the amount of
75,500/. have been struck off. The question as to this
claim is one of singular difficulty. It seems certain that
by insisting on having coarse rubble wrought and finished
in a very perfect manner, although it may not be so
finished in point of style as to answer the techinical de-
scription of Ashlar, &c., yet to the contractor the expense
CASES IN CHANCERY.
701
Westbrw
Railway
COVPANY.
of labour may make it nearly as expensive as Ashlar, and 1866.
so expensive that payment at less than Ashlar price, and MACKiNxoaH
merely at the ordinary scale of prices for coarse rubble, the gbbat
must be a very insufficient remuneration. As the plain-
tiff has withdrawn his motion to vary the chief clerk's
certificate, it is now unnecessary to consider whether the Judgment.
conclusion which he arrived at after much doubt and dif-
ficulty, and after a very laborious examination as to this
question of Ashlar, be perfectly correct. Although I feel
satisfied that it is right not to vary the certificate, I am
still more satisfied, from an examination of the evidence*
that the exacting nature of the directions given by the
defendant's engineer have occasioned the litigation on this
point, and that the terms of the contract have, upon a
question of difficult construction, exposed the plaintiff to
a loss on this head, which was not contemplated, and that
there has been no such failure on the plaintiff's part as to
this part of the litigation, looking at the vastly compli-
cated circumstances of this unparalleled case, as to warrant
any distinction as to the costs of this part of it. So as to
the question of the hardness of the strata and the trial
pits. For as to these there was no separate evidence, and
no amount of time occupied in the investigation to warrant
any distinction.
Upon the whole case the result is this, that defendant's
motion to vary the certificate must be refused. On the
further consideration there must be a decree for payment
by the defendants, the company, to the plaintiff of the sum
certified to be due with interest. The amount of interest
in the principal sum to be calculated to the date of pay-
ment, and the amount to be verified by affidavit The
costs of the defendant's motion to vary the certificate to be
costs in the cause, and the defendant's, the company, to
pay to the plaintiff the costs of the cause. For the reason
already stated, the plaintiff's motion to vary the certifi-
cate is refused without costs.
702
CASES IN CHANCERY.
1865.
May 5.
A devise of
residuary real
estate still
specific, not-
withstanding
Wills Act, 7
Will. IV., and
1 Vic. c. 26.
JBddeUr.
Johnston^ 1
Giff. 29, and
Pearmain v.
TwiM, I Oifi;
180, followed.
CLARK t;. CLARK.
E
. CHAPMAN, by her will dated the 28th of March,
1859, after making specific gifts of chattels to her brother,
and of an estate called " Bingwood " to Betsy Cook, she
gave all the rest, residue, and remainder of her estate
and effects whatsoever to her brother Adam Clark. She
appointed him sole executor of her will.
The testatrix died in 1860, leaving considerable real
estate, which passed under the residuary devise, and
Adam Clark having become bankrupt, a bill was filed by
a creditor to administer the estate of the testatrix, and in
such suit a question was raised whether the Bingwood
estate specifically devised was liable to contribute rate-
ably with the residuary real estate for payment of date,
or whether resort should be had for it to the residuary
real estate.
Argument. Mr, Jessel submitted that the Wills Act, 7 Will. IV.
& 1 Vic. c. 27, made no change in the rule that a
devise of residuary real estate was still specific : EddeU
V. Johnson (a), Euis v. Smith (J), Pearman v. Twiss (c).
Mr. V. Hawkins submitted that the reason of the old
rule having failed the rule itself was abrogated. When
the will spoke from the date a residuary devise was spedfic,
but the real estate to pass under it was defined; but
now that the will spoke from the death the real pro-
perty to be dealt with by the will might vary as
much as personal estate. Vice-Chancellor Kindersley in
Dady v. Hartridge (rf) and Barnewell v. Iremonger («),
(a) 1 Giff. 22.
(ft) 2 De G. & Sm. 722.
(c) 2 Giff. 130.
(d) 1 Dr. & S. 236.
(«) Ihid. 242, 255.
CASES IN CHANCERY. 70S
aiid the Mister of tbeBolk in JZoO^ikaMT.iZoCA^^ 1M&
luid adopted thmt yiew. Ci^kk
ThS yiGB-CHAKCKl.LOH : —
I hare already expressed my c^inion that the Wills
Act was not intended to make, and did not in fact make
any change in die law of administration. A residuary
devise of real estate is still, therefore, specific, and unless
the Court of Appeal decide differently, this is the prin-
ciple by which I fed bound to act
Clulk.
ISOS.
TAYLOR V. SPARROW, Nin^.u.
George TAYLOR, of Birmingham, by his will Dj^i^eofw
dated March, 1857, gave and devised unto his two esuteto
nephews, Jessie and Geoige Taylor, their heirs, execu- S^^to'pei^
tors, administrators, and assigns, all the residuary, real, ™^JJS^^e
and personal estate upon trust to permit his sisters Sophia ^ recei? e the
, Fonts for lira
and Matilda Sparrow to receive and take all the rents, without power
interest, dividends, and annual proceeds thereof for and tion)*baUf
durin£r the term of their natural lives, to and for their ^^^^^ ^^^}^
^ ... marry or die,
own use and benefit, and their respective receipts alone then the single
should be the only good and effectual discharge for the Tivortotako
same ; and the same should be received by the said Sophia ^^^ in^th
Sparrow and Matilda Sparrow, notwithstanding any as- mairied, on
signment or disposition by either of them made; and end divide the
in case either of them, the said Sophia and Matilda among tesu-
Sparrow should depart this life or marry, then the one i^'id'n"^^^'''
surviving and remaining unmarried should be entitled to The title deeds
having passed
into the pos-
session of the enrviying tenant for life. On a bill filed by the trustees the Court refused lo
direct the tenant for life to deliver up the deeds to the trustees.
(«) 26 Beav. 465.
704
CASES IN CHANCERY.
1863.
Statetnent,
receive the whole of the income arising firom testator's
said estate and effects, as the same should become due
and payable ; but in case both of them should marry, then
testator directed his trustees to stand possessed of his
estate and effects, upon trust to sell the same, and to pay
and distribute the money to arise from the sale in the
manner therein, mentioned, as if they had both departed
this life. And from and after the decease of them, or
both of them marrying, then testator directed his trustees
to stand possessed of the trust-funds upon trust to pay and
divide the same amongst the nephews and nieces equally*
And the testator empowered his trustees to stand pos-
sessed of the share of any nephew or niece dying before
the distribution of his estate, upon trust to invest the
same and apply the proceeds for the benefit of the child-
ren by the first marriage of such nephew. or niece; and
he also empowered his trustees, or his said sisters-in-law
Sophia Sparrow and Matilda Sparrow alone, to pay to
any ground landlord any sum of money which should be
awarded, or which should be payable firom his estate by
reason of the expiration of any lease during the life or
lives of his sisters-in-law, or which might be recoverable
by any breach or default in the fulfilment of any of the
covenants in any lease under which he held any of lus
properties; and the testator also empowered his said
sisters-in-law to renew any lease of any part of his estate
for a term of years, with power to take down such build-
ings as might be erected thereon, and erect others more
suitable and convenient, as they should be advised.
And he charged his estate with a sum of money not ex-
ceeding 400/. for the above purposes, and authorised the
trustees to take leases in their own names, and to hold them
upon the trusts of the will. He appointed his said sisters-in-
law executrixes of his will. One of the sisters-in-law, Sophia
Sparrow, died in the lifetime of the testator; and, by a codi-
cil to his will dated the 7th of February, 1861, he appointed
CASES IK CHANCERT.
Matilda Sparrow, the sumror of the two sisterB-iii-law,
the sole executrix of his wilL He died in October, 1861,
and at the date of his death, was entitled to fi^ehold pro-
perty at Birmingham, conrinting of several houses, and
the defendant Matilda Sparrow, upon the decease of the
testator, possessed herself of the several title deeds rela-
ting to the testator's fireehold and leasehold properties.
The plaintiflby as devisees in trost, applied to the defen-
dant to hand over these deeds to tiiem. This she refused
to do. The trostees then instructed their solidtor to
make a formal demand for the deeds, which he did in
January, 1863, and the defendant having still refused to
deliver them up, on the following 5th of March this bill
was filed against the tenant for life, Matilda Sparrow and
Jacob Townshend Taylor, as one of the residuary legatees
in remainder, praying, amongst other things, for the
proper administration of the trusts of the will, and '^ that
all proper directions might be given respecting the
custody of the title-deeds and securities relating to or
forming part of the testator's estate."
705
IMS.
StatemaU.
Mr. Bacon and Mr. Retuhaw contended that either as
trustees or renudnder, the plaintiffs were entitled to
the custody of the deeds. The custody of a tenant for
life who did not represent the inheritance was irregular
and improper. As trustees the plaintiffii could not dis-
charge the duties cast upon them without possession of
the deeds. They cited LangdaU v. Briggs{a\ Warren v.
Rudda{b).
ArgiumtKt,
Mr. Malins and Mr. C. Hall^ for the tenant for life,
submitted that she had the legacies, and was entitled to
the custody of the deeds.
(a) 8 De G. M. & G. 391, 416.
(6) Joh.&U. 1.
706 CASES IN CHANCERY.
Mr. O. Morgan^ for a defendant, referred to Lee t.
Prieauxiq).
9.
Sparrow.
— The Vice-Chancellob : —
Judgment. It is not the rule of the Court to take the deeds from
the tenant for life into whose hands they have passed, nor
is it usual to demand security for such deeds where it is
not alleged that they were endangered by remaining in
the custody of the tenant for life. The case of Lady
LanffdaUv. Briggshaa no application to this case, because
the facts are totally different.
Mr. Lewin in his book on trusts (Jb) appears to approve
of a rule in early times acted on that whoever first re-
ceived the deeds is at liberty to retain them. The rule
is referred to in Fodder v. Crahh{c\ where the rule is
recognised ; but that is quite intelligible, because at lav
it could not be argued that possession is wrongful where
the holder has an interest in the property, and in such a
case a court of law would not change the custody of the
deeds. Neither will this Court interfere with the pos-
session of the deeds by the tenant for life where there is
no suggestion that they are endangered by remaining in
such custody. The case of Warren v. RudaU (rf) the rule
here referred to, appears to be one of technical application.
It is observable, also, that there is no decision in that as
to any such rule. There is no ground in my opinion for
changing the custody of the deeds here.
(a) 3 B. C. C. 381.
(b) 3rd. £d. 592 ; 5th ed. 482,
c.23-6.
(c) 12 C. B. 136—379.
(d) 1 Joh. & H. (1).
CASES IX CHANCERY. 707
186&.
SIMPSON V. MALHERBE AND OTHERS. June s, 6^7.
This bm was filed by the plaintiff J, A. Simpson, ^*J^^
agidnst the defendant 6. L. Malherbe, the Messrs. not for the
Sharp and Mr. A. de Berg, the solicitors and agents of pi^^poM of
the Russian GoYemment, praying for an injunction to JI^SfprwdL
restrain the defendant Malherbe firom further prosecuting ^^}- *» » ^
. eollatanl and
an action at law which he had commenced against the improper
plaintiff and other persons, and for a decree for spedfic ^l^^a^tiff
performance of an alleged agreement whereby the defen- ^J^,^ ^y
dant's agent had agreed to sell to the plaintiff for the sum rigttt to the
of 13,000 Polish bonds of the value of 168,000 roubles, uid thTuu'
The case alleged by the bill was as follows: — In ^deBPww
February, 1864, S. L. Hemitz, by the direction of a Mr. ^^^*
Stanislaus Foerster, was instructed to sell the bonds com- that the suit
prised in the alleged agreement, and in order to effect a ^lyTm^
sale applied to Messrs. Wilkinson, of 25, Birchin Lane, ^^^^
commission agents, and informed him that he was desirous plaimiffnot
of selling a considerable amount of such securities. He the costs bat
also delivered to Messrs. Wilkinson a bond for thirty and ex|«Mee
roubles with the coupons payable to bearer as a specimen P"'^^ ^
and directed him to find a purchaser for the amount he the suit.
held, Yiz. 160,000 roubles. The bill alleged that Messrs.
Wilkinson thereupon applied to the plaintiff to know
whether he would take the securities and give them
(Messrs. Wilkinson) authority to agree to take them, and
the plaintiff having assented, Messrs. Wilkinson wrote to
Hemitz as follows : —
" 25, Birchin Lane, Feb. 25, 1864.
" Sir,— We offer for 168,000 (one hundred sixty thou-
sand) roubles Polish Hyashek obligations (13,000=thir-
708
1865.
Simpson
V.
Malberbb
AND
Others.
biatement.
CASES IN CHANCERY.
teen thousand poands), equal to fifty-eight per cent.^ and
2$. S(L for each rouble, subject to our commissioii as
agreed, two per cent.
" Yours, obediently,
« T. Wilkinson and Co.*'
Hemitz immediately wrote and signed at the foot of
the letter as follows: —
" I accept the above terms.
" Hebnitz."
Messrs. Wilkinson thereupon delivered the thirty rou-
ble bond to the plaintiff.
Subsequently to the contract, the plaintiff ascertained
that Hernitz was acting in the sale for the defendant
Malherbe, and that the bonds were in the posseanon of
Foerster as Malherbe's agent. The bill alleged that the
bonds had been retained by Messrs, Sharp, the solicitors
of the Bussian Government ; that the defendant Mal-
herbe was well aware that the plaintiff was the actual
purchaser, and that the contract was entered into by
Messrs. Wilkinson, as agents for Malherbe, and that he
had adopted and ratified the contract, but that subse-
quently to the contract Foerster had paid bonds for
165,000 roubles to Messrs. Sharp. The bill alleged fur-
ther that Messrs. Sharp refused to part with the bonds on
the ground that they were claimed by the Bussian govern-
ment as stolen by the insurgent government of Poland
The bill alleged that the defendant Malherbe had com-
menced an action against Messrs. Sharp for the recovery
of the bonds. The bill ftirther alleged that Messrs.
Sharp intended to dispose of the bonds as agents of the
Bussian Government, and prayed for an injunction
against the Messrs. Sharp to restrain them from parting
with the bonds to any pei*son other than the plaintiff.
The bill chaiged that Messrs. Sharp had full notace of
the contract and submitted that they were trustees for
CASES IN CHANCERY.
709
the plaintiff, that the plaintiff had requested Foerster
to deliver up the balance of the bonds of the value of
2970 roubles or to direct Messrs. . Sharp . to deliver the
bonds for 165,000 roubles to: the plaintiff.
The defendant Malherbe in his answer alleged that the
pliuntiff never had any bond Jide intention of purchasing
the bonds, but that he was acting collusively with the
Russian Government and its agents in this country in
order to obtain the possession of the bonds and to ascertain
the numbers of them.
The defendant Malherbe, who was a manufacturer of
arms at Liege, and had dealings with the Government of
Poland, put in his affidavit in which he stated the nature
of the transaction.
The affidavit was made out of the jurisdiction, and it
was objected that, as plaintiff had no opportunity of cross-
examining the defendant, it could not be read. The
Vice-Chancellor overruled the objection. The material
part of the affidavit^ was as follows :-—
'^ In the course of business during 1863 I received, at
different times^ by way of payment under hon& JidA, con-r
tracts entered into by me, divers lettreB de gage or bonds
of the Credit Foncier of the kingdom of Poland. The
Cr^it Foncier is an association established in Poland for
the purpose of advancing money to be employed in the im«
provement of land and agriculture, and for other business
purposes. I thus became in 1863 the bond Jide owner
of such lettres de gage to the amount of over 5,000,000
francs, or thereabouts. Being desirous of realising some
of the bonds, I instructed Foerster, in the bill named as
my agent, to negotiate the sale of a number of them, and
Hernitz was subsequently instructed, by the direction of
Foerster, to negotiate some of them.
"In February, 1864, Hernitz having seen an adver-
tisement of the firm of T. M. Wilkinson & Co., financial
agents, of 25, Birchin Lane, in the City of London, called
at the office of the^ firm and saw Mr. T. Wilkinson. In
8IMP80N
V.
Malhbrbb
AND
Others.
ataUment.
710
CASES IN CHANCERY.
1966.
Statement,
the course of conversation Hernitz asked Wilkinson if he
could negotiate the sale of bonds of the Credit Foncier of
Poland^ the market for which had been injured by agents
of the Russian government having fisdsely^ and for politi-
cal purposes^ published the number of the bonds stolen.
T. Wilkinson said he thought he could, and the circum-
stances connected with the bonds proposed to be nego-
tiated were then explained to Wilkinson, and a bond for
thirty roubles, with the coupons belonging thereto, were
handed to him as a sample. Wilkinson said he thought
he could find a capitalist to purchase the bonds, and made
an appointment with Mr. Hernitz to call on him the fol-
lowing day. The said Hernitz, according to appointment,
called at the said offices on the following day, and found
the plaintiff there,
" The plaintiff, who was wholly unknown to the said
Hernitz, said he was Mr. Wilkinson's partner, and knew
all about the business ; and to prove that he was such
a partner, he opened a book in which .the said T. Willdn-
son had made entries of matters of business upon which
the said Hernitz had spoken to him on the previous
day.
'^ The plaintiff then said he had found a capitalist who
had a large amount of money to invest in securities of the
description proposed to be negotiated, and the terms were
discussed and finally agreed, subject to approval, which
was to be signified through Foerster or otherwise. The
terms arranged were, payment in cash of 13,0002. £>r
bonds of the nominal amount of 168,000 silver roubles.
The said Hernitz waited for the purpose of seeing the
said T. Wilkinson, and he then, in the presence of the
plaintiff, wrote a letter for the pui-pose of obtaining neces-
say confirmation of the agreement for the sale of the bonds.
The said T. Wilkinson then came in and inquired if the
terms were satisfactory, and would be likely to be accepted.
The said Hernitz said he could not tell, but would write
and ascertain, and it was arranged that a further appoint-
CASES IN CHANCERY.
711
ment should be made as soon as he could obtain an
answer. The said Hernitz then signed his acceptance of
the said terms, but intimated that it was to be subject to
approval as aforesaid.
^' The terms and acceptance, as so offered and agreed to
by the said Hernitz, are set forth, I believe, correctly in
the memorandum stated in the third and fourth para*
graphs of the plaintiff's bill. The said Hernitz called
again on Monday, the 29th of February, 1864, at the
offices of the said T. Wilkinson & Co., and said that he
had not yet received a reply ; but he being satisfied that
the terms would be accepted, authorised the said T. Wil-
kinson to close the sale.
'' On Tuesday, March the 1st, 1864, the said Hernitz
called again on the said T. Wilkinson & Co., at the said
office, and told them the conditions were accepted, and
he appointed Wednesday (the following day), at twelve
o'clock, to complete the sale, if the bonds should be in
London by that time. Accordingly, on Wednesday, the
2nd, the said Hernitz, accompanied by the said Foerster
and a Mr. Tuchman, called at the offices of the said
T. Wilkinson & Co. The plaintiff having ascertained
that they had the bonds with them, said, ^ We will go to
the capitalist.' The plaintiff and the said T. Wilkinson
thereupon took the said Hernitz and Foerster and Mr.
Tuchman together to the office of the so-called capitalist,
at Gresham House, in the City of London, which turned
out to be the offices of the defendants W. Sharp and H.
Sharp, who are attorneys in London, carrying on business
at Gresham House, and who are the solicitors in London
to the Russian government. The plaintiff then intro-
duced the said Hernitz, Foerster, and Mn Tuchman to a
person whom they found in a room alone, and whom they
represented to be, and who himself professed to.be, this
capitalist, and they were afterwards joined by two other
persons there. The said Hernitz, Foerster, and Tuchman
were unacquainted with any of the said persons, but they
1865.
SXMPSON
V.
Mai«hbrbb
AXD
Othbbs.
SiaUmeiU.
712
CASES IN. CHANCERY.
1865.
SiMPSoir
V.
Malhbrbb
AND
Otrbrs.
Statement,
afterwards discovered that the so-called capitalist to
whom they were first introduced, and who took upon
himself to act in that character^ was the defendant, W.
Sharp, and that the two persons who joined him as afore-
said were his brother and partner, the defendant H. P.
Sharp, and A. de Berg, the. Russian consuL The de-
fendent took the bonds for. the purpose, as he alleged, of
examining them. He looked over them, and then said
that the bonds were stolen, and insisted on keeping them,
and he (the plaintiff), and the defendant H. P. Sharp, and
the said T. Wilkinson and A. de Berg aiding and abet-
ting him therein, kept them accordingly, notwithstanding
the remonstrances of the said Messrs. Hernitz and Foerster.
They being foreigners and unacquainted with law, and
without professional advice, were unable to help them-
selves.
*' It is alleged that Foerster succeeded in retaining the
coupons to the bonds. The defendant W. Sharp being
desirous to make the fraud practised on Hernitz look as
little like a robbery as possible, then forced on him a
document purporting to be, but which was not in fiu:t
(inasmuch as one bond for 3000 roubles was omitted firom
the list, and the whole amount of bonds now in the pos-
session of the plaintiffs W. Sharp and H. P. Sharp, and of
the said T. Wilkinson and A. de Berg is, in fact, of the
value of 168,030 roubles) an acknowledgment of the pos-
session of the said bonds with their numbers attached. I
have made every endeavour to obtain possession of the said
bonds from the defendants W. and H. P. Sharp; but
they, acting in collusion, as I believe, with the plaintiff,
as well as with the said T. Wilkinson and A. de Beig,
have refused to return them, and still hold the same. I
have, therefore, been obliged to commence, and have com-
menced, an action at law against the said A. de Berg, W.
Sharp, H. P. Sharp, T. Wilkinson, and the plaintiff in
this suit, to recover damages from them for fraud and con-
spiracy, not only in defrauding me of the said bonds or
CASES IN CHANCERY.
713
letires de gage^ which were taken possesaion of by the
defendants the attorneys W. and H. P. Sharp, in concert
with the plaintiff and the said T. Wilkinson and A. de
Bergj nnder the pretence of buying them as capitalists,
and also in respect of their proceedings, which have had
the effect of destroying the value of and rendering un-
marketable the rest of the bonds or lettres de gage held by
me as aforesaid, which are of the value of 5,000,000
irancs and upwards. I believe that the whole scheme
whereby the said Hernitz was induced to sign the memo-
randum was a mere fraud on the part of the plaintiff,
in concert with the other defendants and T. Wilkinson
and A. de Berg, to obtain possession of the bonds, and
that the plaintiff never intended to purchase, and was not
and is not in a position to pay for the same. And that
this suit is instituted by him, with the defendants W. and
H. P. Sharp, and also the said A. de Berg, with the view
of screening them, if possible, from the consequences of
their fradulent conduct, and of preventing the exposure
that must take place if the action at law should proceed
and also for collateral and political purposes, to lock
up the bonds and to destroy the credit thereof, and of
other bonds of a similar character. The fraud practised
upon me by the said defendants W. and H. P. Sharp, as
solicitors of the Russian government, in obtaining pos-
session of the said bonds, is, I believe, a sequal only to a
similar attempt some time since made in Paris. While I
was there and had possession of the said bonds the police
(set in motion by the Russian embassy there) entered my
room at night and took all the Polish bonds in my pos-
session (including the bonds now in question in this suit),
under the pretence that they had been stolen, and sub-
jected them to a minute examination and scrutiny; but the
authorities in France were satisfied that I was entitled to
hold and retain the said bonds, and that the charges of the
Russian government were unfounded, and they accord-
VOL. IV. BBS
1866.
Stat&9Mnt.
714
1865.
Simpson
V.
Malhbbbb
AND
Othebs.
Statement.
CASES IN CHANCERY.
ingly returned the said bonds to me with an apology for
what they had done."
I have a considerable number of bonds of a similar
description to those mentioned in the bill which may be
purchased in the market by any one honestly desirous of
purchasing and paying for the same. I am ready and
willing to deliver to the plaintiff other bonds similar in all
respects to those retained by the Russian government
at the price agreed upon, provided I am sufficiently
guaranteed against a recurrence of the fraud attempted
to be practised on me by the defendant.
Argument. Mr. MaltfUy Mr. Jessel, and Mr. Hall submitted that
the plaintiff was clearly entitled to a decree for specific
performance. As to a decree for specific perfomumce
of a contract to purchase shares they cited : Duncuft v.
Albrecht (a) ; as to stolen property they cited : Shaw v.
Fisher (6), Millier v. Rase (c), Clark v. Shee (d), Eashy v.
Crock (e). They offered to abandon the injunction.
Mr. Bacon and Mr. Druce for Malherbe.
This is a collusive suit^ instituted not for the purpose
of obtaining any decree for specific performance, but in
aid of an attempt, indirectly, to prevent the defendant
from recovering possession of the bonds of which he had
been defrauded. Even for a laudable object this Court
would not allow its machinery to be used for any purpose
other than that avowed on the record, and a fortiori would
not allow a plaintiff to seek the repetition of a fraud by
means of the process of the court They cited Gumey v.
Gurney (f).
(a) 12 Sim. 189.
(6) 2DeG.&Sra. 11.
(c) Bur. 452.
(rf) 1 H, Cowper, 197.
(e) 10 Bing. 243.
(/) 1 H. & M. 413.
CASES IN CHANCERY.
715
Mr. Green^ Mr. C Hall,
appeared for Messrs. Sharp.
and Mr. Talfourd Salter
The Vice-Chancellor : —
The bill in this suit is filed ostensibly for the specific
performance of a contract for the sale of certain Polish
bonds, and the decree which is sought has reference to
these particular bonds, in respect of which an injunction
has also been asked, and which are alleged by the plain-
tiff to be in the possession of the Russian government.
At the bar the case as to the particular bonds and the
injunction has been abandoned by the plaintiff, and with
that abandonment the whole of this suit as to the par-
ticular bonds is also abandoned. The plaintiff's case has
been opened and concluded without any evidence having
been tendered on his behalf. The decree, moreover,
which has been asked for at the bar proceeds on the
footing of an offer contained in the defendant Malherbe's
answer, to hand to the plaintiff other bonds in lieu of
those retained by the agents of the Russian government ;
but that offer has been guarded with the condition that
Malherbe should be guaranteed against the recurrence of
a fraud similar to that which, according to his own state-
ment, has already been practised upon him. The offer
mentioned in the answer is, however, so made that it is
impossible for the plaintiff to avail himself of it, because
he cannot adopt the condition attached to the offer. The
Court, therefore, has no choice but to dismiss this bill.
Various passages in the answer have been read and com-
mented on by both sides, which contain allegations of
fraud against the plaintiff. It has been said that the
plaintiff has had. no opportunity of meeting these alle-
gations, but what is meant by such an assertion I am at a
loss to understand. The agents of the Russian govern-
ment are no strangers to the answer of the defendant
Malherbe. They also hold the bonds themselves in their
B B B 2
Simpson
r.
Halhbrbb
AND
Others.
Judgmtnt.
716
CASES IN CHANCERY.
1865.
Simpson
V.
Malhbrbb
AND
Othbbs.
Judgment,
hands^ and tbey have refused the opportanity offered to
them of cross-examining the plaintiff. No doubt, as
between co-defendants, the matters put in issue between
the plaintiff and the other defendants to the suit cannot
be discussed as issues between the plaintiff and the
defendants. But the case made by the defendant Mai-
herbe in his answer demands the serious consideration of
the Court. He there says that the suit ^' is instituted by
the plaintiff in collusion with the defendants, the agents
of the Russian government, and another person, with the
view of screening them, if possible, from the conse-
quences of their fraudulent conduct, and of preventing
the exposure that must take place if the action at law
should proceed, and also for collateral and political pur-
poses to lock up the bonds and to destroy the credit
thereof, and of other bands of a similer character." The
witness Hemitz has been cross-examined by the plaintiff
in open court, and there is enough in his examination to
show that the suit has been improperly instituted; that
it has, in fact, been instituted for a collusive purpose.
The bill must therefore be dismissed, with a declaration
that the Court, being of opinion that the suit has been
improperly instituted, the bill must be dismissed with
costs against Malherbe, and that the plaintiff shall pay to
Malherbe not only the costs of the suit, but his costs,
charges, and expenses properly incurred in reference
thereto. The bill must also be dismissed with costs
against the agents of the Russian government. The
decree is an unusual one, but so is the suit ; and when
the Court finds that a suit is instituted not bond fide for
the direct ostensible purpose, but with a view to some
ulterior and improper purposes, its duty is to see that
those who are improperly sued in such a matter have
justice done to them by a full and proper indemnity
against all the expenses which they have unjustifiably
been obliged to incur.
INDEX
TO THE
PRINCIPAL MATTERS.
ACCOUNT.
1. Demurrer to a bill seeking a
discovery and an account of goods
sold by the defendant, on the price
of which the plaintiJQf was entitled to
a commission, overruled with costs.
On questions of account, Courts
of Equity and Courts of Law possess
concurrent jurisdiction, and the de-
cision as to the proper tribunal
must be governed by considerations
of convenience. Phillipa v. Fhillipa,
9 Hare, 471, observed on. Shepard
T. Brown, 208
2. On a bill by a creditor against
an inspector under a deed for the
benefit of creditors who had neg-
lected to act on the provisions of
the deed as to getting in the debtor's
estate, the Court decreed an account
against the trustee for wilful default,
with annual rests and interest, and
for the costs of the suit.
The Court will treat inspectors
with reasonable indulgence, but at
the same time will require of them
reasonable diligence in performing
the duties prescribed and under-
taken. Coppard V. Allen, 497
3. On a bill by the plaintiff, who,
while lodging at an hotel, and se-
riously ill, executed a bond to the
ACCOUNT.
landlord for lOOOZ. payable at six
months' date, to secure moneys paid
and advanced for the plaintiff Ibr
hotel charges, the landlord under*
taking to rectify all errors in the
accounts, the Court restrained an
action at law on the bond, the plain-
tiff giving judgment for the amount
of the claLn. Edwarda-Wood v.
Baldwin. 613
4. Executors and devisees in trust
to sell, having an option of post-
poning the sale for five years were
directed in such case to pay the
income to the tenant for life. At
the end of five years they had paid
no legacies, rendered no account,
though frequently requested so to
do, nor dealt with the estate, but
claimed remuneration for their ser-
vices— Ordered to pay the costs of
a suit to administer the trusts of the
will. Wroe v. Seed. 425
5. Demurrer to a bill alleging
that the defendants had received
moneys on behalf of the plaintiff of
which he could obtain no account
without discovery — Allowed with
costs.
Where the relation between a
principal and agent partakes of a
718 ADMINISTRATION.
AMENDED BILL.
fiduciary character this Court has
jurisdiction, and will direct an ac-
count, though the receipts and pay-
ments are all on one side. Phillips
V. Phillips, 9 Hare, 471, and Din-
vnddie v. Bailey y 6 Ves. 136 con-
sidered^. Hemmings v. Pugh, 456
See Administration.
Building Contbact.
Production.
Quasi Trustee.
Solicitor and Client, 2.
ACCOUNT (REFUSAL TO).
Where the trustees under a will
refused to furnish the solicitor of
the residuary legatee with an account,
thongh they offered to permit the
plaintiff herself or a professional ac-
countant to inspect the accounts, the
Court ordered them to pay the costs
of a suit to administer the testator's
estate. Kemp v. Bum, 348
ACQUIESCENCE.
iS^ee Marriage Settlement, 1.
Surety.
ACTION.
See Ejectment.
ADAPTION OF DISCOVERY.
See Patent.
APMINISTRATION.
Bill to administer the estate of a
deceased person found lunatic by
commission, and for an account of
the dealings of the defendants with
his estate from the date of the lunacy
till his death, alleging fraud.
Demurrer by the defendants, who
were the executors and trustees of
a will made before the lunacy, and
also committee and surety under the
commission, that the proper juris-
diction was in lunacy — Overmled
with costs. Scammel v. Light, 127
See Account, 4.
CHARoma Order.
Indemnity.
Partnership.
ADVANCE.
See Order and Disposition, 2.
ADVISER-
iSee Professional Adtiseb.
AFFIDAVIT.
See Office Copt.
AFTER-ACQUIRED
PROPERTY.
Su Marriage Settlement, 2.
AGENT.
See Account, 5.
AGREEMENT.
See Pressure.
ALIMONY.
See Settlement, 2.
ALLOTMENT.
See Fraud, 1.
AMENDED (INCONSISTENT)
BILL.
A bill being by leave granted on
hearing the demurrer amended by
impeaching the codicil as being ex-
ecuted by the testator while in a
state of mental incapacity. The
defendant thereupon moved to dis-
BANKRUPTCY.
miss the amended bill as being in-
consistent with the <»iginal bill, bat
the Coort refused the motion, and
directed the'\B06ts to be costs in the
Parker ▼. NiekMtm. 311
ANNUTTT.
See PsKSiON.
ANTECEDENT DEBT.
See Order and DisposirioNy 1.
APPOINTMENT.
See Settlement, 2.
ARRANGEMENT.
See Quasi Trustee.
ASSETS.
Su Partnership.
ASSIGNEES.
See Fraud, 2.
ASSIGNMENT (STATUTORY
FORM OF).
See Order and Disposition, 1.
ASSIGNMENT.
See Pension.
Settlement, 1.
ATTACHMENT.
See Specific Performance, 3.
BANKERS.
See Pressure.
BANKRUPTCY.
See Order and Disposition, I, 2.
Partnership.
Fraud, 2.
BREACH OF TRUST. 719
BENEFICIAL INTEREST.
See Breach of Trust, 1.
BILL.
See Amended (Inconsistent Bill.)
BILL BY ONE SHAREHOLDER
ON BEHALF OF OTHERS.
See Fraud, 1.
BILL (DISMISS^ OF).
See Lease.
BILL IN CHANCERY.
Su Fraud, 1, 2.
BILL OF SALE.
See Loss bt Executor.
Order and Disposition* 1.
BILL TO RECTIFY
LEASE.
See Lease.
BOND.
See Account, 3.
Surety.
BOOK OF REFERENCE.
See Deposited Plans, 2.
BREACH OF CONTRACT.
See Specific Performance, 1, 3.
BREACH OF COVENANT TO
REPAIR.
See Ejectment.
BREACH OF TRUST.
1. The trustee of a sum of stock,
being beneficially entitled to uiie
720 BUILDING CONTRACT.
CHARGING ORDER.
moiety undivided, assigned his in-
terest to a mortgagee, who placed
a distringas on the moiety. The
trustee afterwards sold out a moiety
and absconded. On a bill by the
cestui que trust of a moiety, the Court
held that he was entitled to the re-
maining moiety, but gave the mort*
gagee his costs. Wtlkins v. Sibley.
442
2. Where a husband entitled to
the interest of a fund for life, with
remainder to his wife for life, in-
duced the acting trustee to pay him
the money on the written consent of
the wife, the trustee having died,
his estate was held liable to make
good the moneys so paid, on a bill
filed by the widow and the surviving
trustee. Cresswell v. DewelL 460
BREWERY.
See Specific Psrfobmance, 2.
BRIDGE.
See Deposited Plans, 1.
BUILDING CONTRACT.
YHiere on the investigation of a
complicated demand for work and
labour done, and other matters, or
performance of work under a con-
tract with a railway company for
works of enormous extent, the chief
clerk's certificate, after a laborious
examination, ascertained the amount
due, the Court will not allow the
result so certified to be varied as to
the whole or any part of it unless a
case of clear mistiJ^e or gross abuse
is shown.
In such cases the certificate of the
chief clerk should not be questioned
on any ground which would not be
a ground for moving for a new trial
or for setting aside the verdict of a
jury-
Where by a contract a sum of
money is payable at a time certain
and upon a sum to be ascertained on
certain data, but a diipote occurs
as to the amount which is settled by
the Court, interest is payable under
the Statute 3 & 4 Wm. IV. c. 42.
Mackintosh v. Great Western. 683
BUILDING LEASE.
See Landloed and Tenant.
BYE-LAWS.
See Local Government.
CALL.
See Fbaud, 1.
CAPITAL.
See Will, 6.
CERTIFICATE.
^M Building Contract.
CESTUI QUE TRUST.
See Breach of Trust, 1, 2.
CHARGE ON LAND,
An order of the Probate Court
for the payment of money is not a
charge on land within the meaning
of the 1 & 2 Vic. c. 110. PraU v.
Bull. 117
See Solicitor.
Chargino Order.
CHARGING ORDER.
Where a solicitor had obtained for
a client a foreclosure decree (who
had subsequently died, and a decree
for administration of his estate had
been made) the Court, under the
28th section of the 23 & 24 Vic. c.
COMPENSATION.
127, made a charging order for the
costs of the suit against the real
estate of the client. WiUan v.
Bound. 416
CHARITY.
See Will, 6.
CHATTELS.
See Execution.
LiKN.
CHEMICAL CURIOSITY.
See Patent.
CHEMICAL INVENTION.
See Patent.
CHEMISTRY.
See Patent.
CHILD.
See Father and Child.
CLIENT.
See Solicitor and Client, 1, 2.
CO-DEFENDANT.
See Stat of Proceedings.
COMMISSION.
See Account, 1.
COMPANY.
See Fraud.
COMPENSATION.
See Landlord and Tenant.
Specific Performance, 1, 3.
CONTRACT. 721
COMPOSITION.
See Fraud, 2.
COMPULSORY POWERS.
See Investment.
CONCEALMENT.
See Marriage Settlement, 1.
Solicitor and Client, 1.
CONCURRENT JURIS-
DICTION.
See Account, 1.
CONDITIONS OF SALE.
See Deposit.
CONDITION.
See Execution.
CONFIDENTIAL RELATION.
See Solicitor and Client, 1, 2.
CONSENT OF WIFE.
See Breach of Trust, 2.
CONSIDERATION.
Su Marriage.
Covenant to Settle.
CONSTRUCTIVE NOTICE.
See Marriage Settlement.
CONTRACT.
See Marriage.
CONTRACT (NON-PERFORM-
ANCE OF).
See Specific Performance, 3.
722
COSTS.
DEBTS.
CONTRACTOR.
See Building Contkact.
Execution.
CONTRARY INTENTION.
See Will, 1.
CONVENIENCE.
See Account, 1.
Building Contract.
CONVERSION.
See Will, 6.
CONVEYANCE.
See Professional Adyisbr.
CONVICTION.
See Voluntary Settlement.
COPYRIGHT.
Where the plaintiff compoBed cer-
tain tales for the defendant for pub-
lication in the London Journal, of
which he was the proprietor — Held
that the subsequent publication of
such tales in a weekly supplementary
number, for sale with or without the
current number, was a " publication
separately" within the meaning of
the 18th section of 6 & 6 Vic. c. 45.
Smith y. Johnson 632
COSTS.
See Account, 1, 2, 4, 5.
Account (Refusal to).
Administration.
Breach of Trust, 1.
Charging Order.
Forfeiture.
Fraud, 1.
Loss BT Executor.
Marriage.
Office Copt.
Partnership.
Privileged CoMMUNicATioir.
Professional Adviser.
Settlement, 2.
Solicitor.
Stat of Proceedings.
COVENANT.
See Mistake.
COVENANT TO SETTLE.
Covenant by husband and wife to
settle ''all real or personal estate,
property, or effects to which the
wife or the husband in her right
shall by gift;, descent, succession, or
otherwise become entitled" — Held
to include reversionary interests in
Consols, which fell in by the death
of a tenant for life, after the decease
of both husband and wife. Orafftetfv.
Humpage^ I Beav. 46, followed. Re
Hughes's Trusts. 432
See Marriage Settlement, ?.
CREDITOR.
See Account, 2.
Judgment Creditor.
Partnership.
SURETT.
CROWN.
See Voluntart Settlement.
DAMAGES.
See Specific Performance, 1, 3.
DEBTS.
See Execution.
Partnership.
Pension.
Will, 6.
DEMONSTRATIVE LEGACY.
DEPOSIT.
723
DEBT SECURED BY DEPOSIT
OF TITLE DEEDS.
See Settlement.
Obdsb and Disposition, L
DEBTOR AND CREDITOR.
See Lien.
DECORATIVE REPAIR.
See Specific Performance, 1.
DECREE.
See Partnership.
DEED NOT
ACKNOWLEDGED.
See Will, 5.
DEED OF INSPECTORSHIP.
See Account, 2.
DEFAULT.
See Deposit.
DELAY.
See Account, 4.
DELIVERY (PASSING BY).
See Lien.
DEMURRER.
See Account, L
Administration.
Amended Inconsistent Bill.
Fraud, 1, 3.
Opening Foreclosure Decree.
Privileged Communication.
Untrue Averment.
DEMONSTRATIVE LEGACY.
See Will, 6,
DEPOSITED PLANS.
1. Where the plans and sections for
the construction of a bridge over a
public road described the breadth of
the proposed bridge as forty-five
feet, the Court restrained the com-
pany from constructing the said
bridge except in accordance with
the plans and sections so deposited.
The 13th section of the Railway
Clauses Act, which provides " that
where in any place it is intended to
carry the railway on an arch or
arches, or by a viaduct, as marked
on the plans and sections, the same
shall be made accordingly," means
according to such plans and sections.
Attorney- General v. The Tewkesbury
and Malvern Railway Company, 333
2. Where the plans deposited by
a railway company delineated afield,
showing the line, the limits of de-
viation, and the boundaries on one
side of those limits, but leaving the
boundaries on the other side unde-
fined, the Court restrained the com-
pany from taking the land beyond
the limits of deviation on the unde-
fined side, though the name of the
owner of the whole field was de-
scribed in the book of reference.
Wrigley v. The Lancashire and York-
^ire Railway Company, 352
DEPOSIT.
At a sale under a decree by the
Court, the conditions provided that
in case of nonpayment of the pur-
chase-money or other default, there
should be a resale, and the deficiency,
if any, to be made good by the pur-
chaser, but containing no stipulation
as to the return or forfeiture of the
deposit. The purchaser paid the
deposit, and afterwards became
bankrupt, and the assignees having
declined to complete, the Court held
the deposit forfeited.
724 DIVERSION OF ROAD. EQUITY OF REDEMPTION.
Where the purchaser makes de-
fault^ no express stipulation is neces-
sary to entitle the vendor to the
deposit : Semble. Dtpree v. Bed--
borough. 479
DEPOSIT OF DEEDS.
See Ordeb and Disposition, 1.
DILIGENCE.
See Account, 2.
DISCRETION.
See Loss by Execution.
DISCOVERY.
See Account, 1, 5.
Patent.
DISMISSAL OF BILL.
See DiTEBSiON (Permanent) op
Road.
Fraud, 2.
Lease.
DISPOSITION.
See Order and Disposition, 1, 2.
DISTRINGAS.
See Breach of Trust, 1.
DIVERSION (PERMANENT)
OF ROAD.
The 16th section of the Railway
Clauses Consolidation Act autho-
rises the permanent diversion of
public roads, and not onlj a tempo-
rary diversion for the purpose of
constructing the railway; and the
Court dismissed a bill filed for an
injunction to restrain such diversion.
Phillippe V. London and Brighton
Railway Company, 46
DIVORCE.
See Settlement, 2, 3.
DOWER.
See Will, 4.
DUTIES.
Su Account, 2.
EAST INDLA. COMPANY.
See Pension.
EJECTMENT.
Where a lessor brought ejectment
for breach of covenant to repair
within three months after notice, it
appealing that out of twenty-two
items twenty had been proceeded
with, and fourteen completed ; that
the works had been partially de-
layed by weather, and that no fur-
ther remonstrance had been made
by the lessors — ^the Court restrained
the action, and directed an inquiry
whether the covenants had been
performed. Bargent v. Hiomson.
473
See Landlobd and Tenant.
ELECTION.
See Will, 4.
ENGAGEMENT.
See Marruige Settl^^ent, 1.
ENQUIRY.
See Ejectment.
EQUITY OF REDEMPTION.
SeeJuDGUEJUT Creditor.
Solicitor and Client, 1.
EXECUTORY CONTRACT.
EQUITY TO SETTLEMENT.
See Sbttlement, 1.
EQUITABLE MORTGAGE.
Su Ordkr and Disposition, i.
ERROR.
Ste Account, 3.
ERROR IN LEASE.
5leeLxASK.
EVIDENCE.
See Priyilegkd Cohxunication.
Production.
EXECUTION.
Rails and other chattels which by
the terms of the contract when
placed on the land became the abso-
late property of the company, the
contractor to have no property
therein, except the right of using
them on the land for the purpose of
the works, except on completion of
the line, as a condition precedent,
the plant was to be given to the
contractor as part consideration, or
if used by the company to be paid
for — Held, not liable to be taken in
execution for the company's debts.
BeeeUm v. Marriott. 436
EXECUTORS.
Su Account, 4.
Indemnity.
Quasi Trustee.
Untrue Averment, 1.
Solicitor and Client, 3.
EXECUTORY CONTRACT.
See Order and Disposition, 2.
FELONY. 725
EXPECTANT HEIR.
Su Post Nuptial Sbttlsmrnt, 2.
Fraud, 3.
expenditure:
Su Landlord and Tenant.
EXPERIMENTS.
Su Patent.
EXPRESS STIPULATION.
Su Deposit.
FACTORY.
Su Local Gk>YSRNMENT.
FALSE ENTRIES.
See Production.
FATHER AND CHILD.
Gift by a daughter of a large part
of her property to her father set
aside with costs, it appearing that
it was made shortly ailer attaining
twenty-one, and while the father
was acting as her guardian, and was
regarded with implicit confidence
as the sole relative capable of manag-
ing her affairs.
Where a gift is impeached on the
ground of undue influence, in order
to sustain the gift the Court requires
the clearest and most unequivocal
evidence that the transaction was
fully understood by and was the
voluntary and deliberate act of the
donor. Hatch v. Haichy 9 Ves. 296,
considered ; Daviu t, Davies 41 7
FELONY.
See Pressure.
Voluntary Settlement.
726
FRAUD.
GIFT OVER.
FIDUCIARY RELATION.
See Professional Adviser.
Account, 5.
FORECLOSURE.
See Charging Order.
Opening Foreclosure De-
cree.
FORFEITURE.
A testator having bequeathed the
dividends of a fund to his niece for
life, remainder to her children, bj a
codicil reciting that her husband was
dead, declared that in case she mar-
ried again without the consent of the
trustees, she should forfeit the legacy
and take only SOL a jear. The
niece, without the consent or know-
ledge of the trustees married, re-
ceived the dividends for some time,
and died. On a bill bj the trustees
against the husband (who denied
knowledge of the clause of forfei-
ture) the Court declared the husband
subject to the liabilities that affected
the wife. Charlton v. Coambea 382
See Deposit.
FRAUD.
1. Where a plaintiff filed a bill on
behalf of himself and all other
shareholders except the defendants,
against the company and the direc-
tors and solicitors, alleging misrep-
resentation and suppression, and
praying for repayment of the de-
posits— a demurrer was allowed
without leave to amend.
The payment required on allot-
ment is not a call.
Where the memorandum of asso-
ciation empowered the directops
without further authority from the
shareholders, to pay a specified sum
for the cost and expenses of the pro-
moters— Held^ on demurrer, thai a
payment without taxation was not
improper. Croehey v. The Bcmk of
Wales 814
2. The plaintiff, a certificated
bankrupt who had compounded with
his creditors, filed a bill impeach-
ing a purchase from his assignees of
part of the property by the solicitor
to his assignees ; but, from his cross-
examination in Court it appearing
in the opinion of the Court that the
composition was fraudulent^ and that
after his bankruptcy he had himself
purchased some of his real estate
vested in his asignees, and had sned
for and recovered for his own bene-
fit moneys due to him at the time of
his bankruptcy, and not entered in
his schedule or accounted for to his
assignees or creditors, the Court dis-
missed the bill, but without preju-
dice to the rights of the assignees.
Adams v. Swarder 287
3. An heir-at-law cannot main-
tain a bill in the Court of Chancery
to set aside, on the ground of fraud,
a will devising real estates. Jones
V. Gregory. 468
See Administration.
Privileged Comhitnication.
Forfeiture.
Quasi Trustee.
FURNITURE.
See Will, 3.
GIFT.
See Father and Child.
GIFT BY IMPLICATION.
See Will, 4.
GIFT OVER.
See Forfeiture.
INDEMNITY.
INQUIRY.
727
GIFT TO SOLICITOR.
See Solicitor and Client, 2.
GOODS.
See LiiBN.
GOOD CONSIDERATION.
See Post Nuptial Settlement.
GROWING CROPS.
See Lease.
GUARDIAN.
See Father and Child.
Lease.
Will, 2.
HEIR.
See Fraud, 3.
Quasi Trustee.
HUSBAND AND WIPE.
See Breach op Trust, 2.
Covenant to Settle.
Forfeiture.
Marriage Settlement, 1, 2.
Post Nuptial Settlement.
Settlement, 1, 2.
IMPROVEMENTS.
See Quasi Trustee.
IMPROVED PRICE.
See Sub-Purchaser.
INCOME.
See Will, 4.
INDEMNITY.
In an administration suit, the
order of the Court is an indemnity
to the executors.
In an administration suit, execu-
tors claimed to retain part of the
residne as an indemnUj against pos-
sible liability in respect of mining
shares. The Court refused the
claim, but required the residuary
legatees to undertake to answer such
liability. Williams v. Headland 505
INDIA.
See Pension.
INDORSEMENT.
See Order and Disposition, 1.
INDULGENCE.
See Account, 2.
INFANT.
See Lease.
Marriage Settlement, 2.
Solicitor.
INFLUENCE.
See Father and Child.
PosT-NuPTiAL Settlement.
INJUNCTION.
See Accounts.
Copyright.
Deposited Plans.
Diversion (Permanent) of
Road.
Judgment Creditor.
Landlord and Tenant, L
Local Government.
Office Copy.
Stay of Proceedings.
INJURY AS TO DAMAGES.
See Specific Performance, 3.
INQUIRY.
See Specific Performance, 1,
728 INVESTIGATION.
INSOLVENCY.
See Partnership.
INSPECTORS.
See Account, 2.
INSUFFICIENT STATEMENT
OF CLAIM.
See Untrue Averment.
INSURANCE COMPANY.
See Misrepresentation.
INTENTION.
See Will, 1.
INTEREST.
See Building Contract.
Will, 4.
INTERIM INVESTMENT.
See Investment.
INTERVENTION OF INDE-
PENDENT SOLICITOR.
See Solicitor and Client, L
INVALID SALE.
Su Solicitor and Client, L
INVALID WILL.
See Quasi Trustee.
INVENTION.
See Patent.
INVESTIGATION.
See Specific Performance, 2.
LANDLORD AND TENANT
INVESTMENT.
Where land was taken by a rail-
way company under the compnlsory
powers of their own Acts, with
which the Lands Clauses Consoli-
dation Act was incorporated — Held^
that under the 80th section of the
latter Act the company were bound
to pay the costs of the petition, for
interim investment. Re Shuttle-
worth's Estate Act. 87
JOURNAL.
See Copyright.
JUDGMENT CREDITOR.
1. On a bill by a judgment cre-
ditor of a mortgagor, the Court
granted an injunction to restrain
mortgagees who were about to sell
under their power from paying the
surplus to the mortgagor.
The statute, sec. 1, does not apply
to an equity of redemption. Semble,
Thornton ▼. Finch. 515
See Account, 3.
JURISDICTION.
See Account, 1.
Abmini str ation.
Building Contract.
LANDLORD AND TENANT.
The plaintiff took, and was let
into, possession of land, for the pur-
pose of building according to a plau
agreed upon and at a rent fixed,
without any agreement in writing,
and without any parol agreement
for a lease for a term of years; after
which the plaintiff expended a con-
siderable sum in buildings according
to the plan, and continued in pos-
session for several years, and duly
paid the rent verbally fixed.
LEASEHOLD.
LIMITS OF DEVIATION. 729
The defendant, as landowner,
having brought an action of eject-
ment, insisting that the plaintiff was
merely tenant at will — Heldy that
the plaintiff was entitled to an in-
junction, and to relief in equity.
The bill prajed in the alternative
for a lease, or for compensation. A
private Act of Parliament having
authorised leases for a certain dura-
tion, and on certain specified terms,
to be granted in cases nearly similar
where there was no written agree-
ment, and it having been the usage
on the estate to double the rent
when a lease was executed, the
Court decreed a lease to the plain-
tiff* according to the Act of Parlia-
ment, and at the double rent.
The decision in Pilling v. Armi-
tage, 12 Ves. 78, not applicable to
the case of a tenancy created for the
express purpose of expenditure by
the tenant in building. Thornton v.
Ramsden, 5 1 9
LEASE.
Bill to rectify a lease of infant's
propert sanctioned by the Court, in
pursuance of an agreement, by ex-
cluding certain trade fixtures alleged
to have been improperly comprised
in the lease, and also by expunging
the covenant as to delivery up of
possession of growing crops and
other particulars, dismissed with
costs, there being no evidence that
the lease was inconsistent with the
agreement, one of the lessees being
the infant's guardian. Seaton v.
Staniland. 61
LEASE SANCTIONED BY
THE COURT.
See Lease.
LEASEHOLD.
See Mistake.
LEAVE TO AMEND.
See Amended Inconsistent Bill.
Untrue Ayebment.
LEGACIES.
See Account, 4.
Will, 6.
See Specific Performance, 1.
LESSOR.
See Ejectment.
LESSOR AND LESSEE.
See Specific Performance, 1.
Ejectment.
LIABILITY.
See Loss bt Executor.
LIEN.
1 . Where a debtor gave authority
bj parol to his creditor to take cer-
tain goods, passing by delivery, and
sell them, and out of the proceeds
to retain his debt — Held, that the
creditor against the administrator of
the debtor had a lien on such goods
to the extent of his claim. Gurnell
V. Gardner. 626
See Obdeb and Disposition, 2.
SOLICITOB AND ClIENT, 3.
LIFE ESTATE.
See Bbeach of Trust, 2.
LIFE INTEREST IN WIFE.
See Will, 4, o.
LIMITS OF DEVIATION.
See Deposited Plans, 2.
VOL. IV.
C 0 C
730 LOSS BY EXECUTOR.
LINE OF STREET.
See Local Government.
LOCAL BOARD OF HEALTH
5ee Local GtOVbrnment.
LOCAL GOVERNMENT.
The owner of a factory, being
desirous of rebuilding his premises,
submitted the plans, &c., to a com-
raittee, to whom the Town Council,
also the Local Board of Health,
delegated their powers, and the
plans having been approved, pulled
down the factory, and proceeded to
rebuild it according to such plans.
The Town Council, under the 35th
section of the Local Government
Act, 1858, relating to buildings to
he erected, having required the
plaintiff to set back his premises, the
Court restrained them by injunction
from interfering with the erection
of the factory according to the ap-
proved plans. Slee v. Corporation
of Bradford. 262
LOCKE KINGS' ACT.
See Will, I.
LODGING.
See Account, 3.
LOSS BY EXECUTOR.
On a bill by a cestui que trust
against trustees and executors to
make them liable for loss alleged to
have been sustained by the sale of
the testator's business and stock in
trade against the will of the plain-
tiff, to one person instead of another,
who, he alleged, would have made a
higher offer, the Court held that,
the trustees having acted with due
tleliberation, and in the honest ex-
MARRL^GE SETTLEMENT.
ercise of their discretion, the trus-
tees were not liable, and gave them
their costs of the suit. SeWjf t.
Bowie. 300
LUNACY.
See Administration.
MANUFACTURE.
See Patent.
MARRLA.GE.
A suitor wrote to the mother of
the young lady as follows:— "If
your daughter has or may have
money, my wish and intention would
be that it should be settled for her
sole and separate use." Conseut to
the marriage having been given, in
the faith that the intention thns
expressed would be fulfilled, and the
marriage having taken effect with-
out a settlement, the Court ordered
the wife's property to be settled in
the usual way, and the costs of the
suit and of the settlement to be paid
out of the fund. Alt v. Alt. 84
See Settlement.
MARRIAGE SETTLEMENT.
1. A settlement made by a woman
of her personal property after her
engagement to be married set aside
at the suit of the husband, although
he was told before the marriage that
she had executed a settlement affect-
ing her property. It appearing that
neither she herself nor her husband
was accurately informed of the na-
ture and effect of the trusts of the
settlement — Held, that the doctrine
of constructive notice of the contenu
of an instrument was not sufficient
to bind the husband on the ground
of acquiescence.
Suppression of the truth, or mis-
representation of a material fact,
MISREPRESENTATION.
MOTION.
-31
'will Ttftiale wnj contract or gift the
▼aliditj of whidi depends npon the
trath and aocaracy of the repre-
sentation on which it was made.
I^rideoMx ▼. LomdaU. 159
2. Where the draft of a proposed
settlement in contempbition of the
inarriage of an in&nt ward of Conrt
containing a covenant to settle after-
acquired propertj, hat no provision
as to a second marriage, was ap-
proved hj the intended hnshand hat
never executed, thongh a post-nup-
tial settlement in different terms was
executed, the Court varied the latter
settlement hj adding the covenant
as to after-acquired property. Be
ffoare's TnuU. 254
MARRIED WOMAN, 1.
See SKTTLSMxirr.
MARRYING AGAIN WITH-
OUT CONSENT.
See FOBFEITURE.
MILITARY PENSION.
See Pension.
MINING SHARES.
See Indemnity, 1.
MINOR.
See Post Nuptial Settlement, 1.
MISREPRESENTATION.
A policy of insurance on the life
of T., which one insurance company
induced another, by way of reas-
surance, to effect on the representa-
tion that they intended to retain
part of the risk, which, however,
they subsequently got rid of by a
further reassurance — Declared void.
C C
Jordem v. Money, 5 H. of L. C. 185,
considered. TraU v. Barimg 485
StB Fkaub, 1.
Marsiaok Ssttlbvbnt, 1.
MISTAKE.
A vendor, being a lessee of a
house with a right of purchase,
agreed to sell the fee simple and
inheritance for 2500/., and assigned
his lease and contract to purchase
to the purchaser, who by mistake
covenanted to perform the covenants
in the lease. It appearing that one-
fourth of the property was leasehold,
and the vendor having brought an
action for the purchase-money — On
bill filed by the purchaser, the Court
set aside the contract.
On a bill to set aside a written
instrument on the ground of mis«
take or surprise, parol evidence »
admissible to show that such instru-
ment is contrary to the real terms
of the contract, and that it ought to
be set aside. Price v. Ley. 235
MORTGAGE.
See Breach of Trust, 1.
Order and Disposition, 1, 2.
Professional Adviser.
Will, 1.
MORTGAGEES.
See Judgment Creditor.
Professional Adviser.
MORTGAGOR.
See Judgment Creditor.
MOTION.
See Office Copt.
Production.
Stay op Prockedincjb.
C 2
732 ORDER AND DISPOSITION.
PARTNERSHIP.
NEXT OF KIN.
See Untrue Averment.
NOTICE.
See Ejectment.
Marriage Settlement, 1.
OFFICE COPY.
An ex parte inj unction obtained
on an affidavit, of which no office
copy was in court at the time of
making the motion, dissolved with
costs. Elsey v. Adams. 398
OFFICER.
See Pension.
OPENING FORECLOSURE
DECREE.
Demurrer to a bill for redemption
after a foreclosure decree, which the
bill asked to open only as to one of
the four parties to the decree, allowed
with costs, and leave to amend re-
fused. Patch V. Ward. 96
ORDER.
See Charge on Land.
Charging Order.
ORDER AND DISPOSITION.
1. Where the registered mort-
gagees of three iishiug boats depo-
sited the mortgage deeds with their
bankers as security for a debt, and
afterwards became bankrupt — Held,
that the statutory form of assign-
ment being by indorsement, the
mortgages could not be dealt with
by the bankrupts, and therefore
were not in their order and dispo-
sition.
A bill of sale by a trader of all
his stock-in-trade to secure an ante-
cedent debt and all future advances
is an act of bankruptcy. Lacon ▼.
Liffen. 75
2. Where the plaintiff advanced
moneys on a vessel in process of
construction on an agreement that
the vessel was to be assigned to him
(which was done), and that such
advance was to be a charge on the
vessel — Held, that on the bank-
ruptcy of the ship-builder, while
they were building the vessel, she
was not in the order and disposition
of the bankrupts, and that the plain-
tiff's lien for the meneys advanced
was not destroyed by the bank-
ruptcy. Swainston v. Cla^. 187
ORDER OF COURT.
See Indemnity.
PARENT.
See Father and Child.
PAROL AGREEMENT.
See Landlord and Tenant.
PAROL AUTHORITY.
See Lien.
PAROL EVIDENCE.
See Mistake.
PARTIES.
See Opening Foreclosure
Decree.
PARTNERSHIP.
Where one of two partners died
and the other soon afterwards be-
came bankrupt, the joint estate
being administered in bankruptcy,
and the separate estate of the solvent
PATENT,
partner in this court — Held, that
the joint creditors who were part
paid in bankruptcy were not entitled
to prove against the separate estate
of the solvent partner pari passu
with the creditors of the solvent
partner.
Where a joint creditor takes the
benefit of a decree for administering
the estate of the insolvent partner
and obtains an order for payment of
his debt and costs, the executors'
costs are prior charges, but where
the executors have denied assets
their costs are postponed to the debt
and costs of the joint creditor. Lodge
V. Pn'tchard, 294
See Will, 6.
PATENT.
Inventions in mechanics are as
totally different from inventions in
economical chemistry as the laws
and operations of mechanical powers
differ from the laws of chemical
affinities and the results of analysis
in the comparatively infant science
of chemistry, with its boundless field
of undiscovered laws and substances.
Where, therefore, prior to the date of
an inventor's patent something neces-
sary for the useful application of a
chemical discovery for manufacturing
purposes remained to be discovered,
which the plaintiff's invention sup-
plied— Held, that the manufacture,
with the materials and process in
the specification, was a " new manu-
facture not in use " at the date of
the patent.
The law recognises the right of
an inventor who finds out and sup-
plies for commercial purposes an
article known previously only as a
chemical curiosity.
This Court looks with distrust on
experiments conducted with a view
to litigation. Youtig v. Fernee. 577
PLATE. 733
PAYMENT.
See Account, passim,
Fbaud, 1.
PAYMENT OF MONEY.
See Chahge on Land.
PAYMENT WITHOUT
TAXATION.
See Fraud.
PENSION.
The Statutes of the 46 Geo. 3,
c. 69, & 47 in Geo. 3, c. 25, do not
apply to pensions granted by the
government of India to military
persons employed in India for the
purpose of the Indian government.
Therefore an assignment by an offi*
cer in the service of the East India
Company, who, under the Transfer
Act, 1858, became a colonel in the
Queen's service and retired on his
pension of 450/., and an annuity of
200/. per annum, and afterwards
assigned the same as security for a
debt — Held, valid. Carew v. Cooper.
619
PERSONAL ESTATE.
See VoLUNTABT Settlement.
PERSONAL PROPERTY.
See Marriage Settlement, 1.
PICTURES.
See Will, 3.
PLANS.
See Deposited Plans, 1, 2.
Local Government.
PLATE.
See Will, 3.
734
PRACTICE.
PRODUCTION.
POLICY OF ASSURANCE.
See Misrepresentation.
Surety.
POST NUPTIAL
SETTLEMENT.
1. BUI by a divorced wife who
had married again, to set aside a
post-nuptial settlement, executed
while a minor, but subsequently
confirmed, for the benefit of the
wife for life for her separate use,
remainder to her (first) husband for
life, remainder among the children
of the marriage, in default of chil-
dren who attained twenty-one as the
wife should appoint ; with a pro-
viso, if the husband and wife should
live separate and the wife should
require alimony, that the wife's in-
terest nnder the settlement should
cease — Dismissed with costs so far
as it sought to set aside the whole
settlement, but the Court declared
the proviso void. Merryweather v.
Jones. 609
2. Bill by an expectant heir to
set aside a post-nuptial settlement
of real estate in expectancy, to trus-
tees for his wife for life, remainder
to pay annually 500/. to the chil-
dren, remainder to herself for life,
made while he was indebted, and on
the suggestion of his wife's mother
— Dismissed without costs.
The principle on which this Court
acts in discouraging mortgages,
sales, and dealings with expectant
heirs of reversionary interests, has
no application to a settlement by an
heir in favour of his wife and chil-
dren. Shafto V. Adams. 492
See Marriage Settlement, I.
Settlement, 2.
PRACTICE.
See Production.
Subpurcuase.
PRESSURE.
The assent which is necessary to
the validity of an agreement in this
court must be an assent, uninfluenced
by any power which die one party
may have of operating on the fears of
the other: therefore where an agree-
ment was executed by the one party,
the plaintiff, under a threat by tLe
other that the plaintiff's son would,
otherwise, be indicted for forgery it
was set aside with costs.
Where the plaintiff's main and
influencing purpose for entering
into the agreement was to relieve
his son from exposure, disgrace, and
ruin, the intervention of other cir-
cumstances or collateral advantages
to himself are not enough to sustain
the agreement in this court. B{tyUtf
V. Williams. 638
PRINCIPAL.
See Surety.
PRINCIPAL AND AGENT.
See Account, 5.
Production.
PRIVILEGED COMMUNI-
CATION.
Demurrer by a solicitor to pro-
duce letters written to him by his
client about the time and in respect
of a matter impeached by a bill as
fi^udulent, to which the solicitor
was not made a party, nor charged
with fraud — ^Allowed. Charlton v.
Combes. 372
PROBATE COURT.
See Charge on Land.
PRODUCTION.
The defendant in a suit instituted
against him as agent for an account.
PUBLIC BOAD.
RAILWAY COMPANY. 735
moved that certain accoants alleged
in the bill to contain false entries
might be produced, on an affidavit,
that the vouchers were lost, and that
he coald not otherwise pat in a suf-
ficient answer. — The motion was
refused with costs.
Taylor V. Henung^ 4 Beav. 235,
considered. Turner Burckinshaw S99
PROFESSIONAL ADVISER.
Where the professional adviser
of the plaintiff being aware of the
extent of her fortune and of the in-
fluence possessed over her by her
brother-in-law (his debtor) took se-
curities to a large amount to secur-
his debt the Court set them aside
and made the defendant pay the
costs of the suit. Rhodes v.
BaU. 670
PROFESSIONAL RELATION.
See SouciTOB and Client.
PROFITS.
See Specific Performance, 2.
PROOF.
Su Partnership, 1.
PROVISO.
See Settlement, 2.
PROVISO FOR ALIMONY.
£ee Post Nuptial Settlement, 1.
PUBLICATION.
See CoPTBiOHT.
PUBLIC ROAD.
aSV^ Deposited Plans, 1.
PURCHASE.
^0e Solicitor and Client, 1.
PURCHASE-MONEY.
See Deposit.
PURCHASER.
See Specific Performance, 2, 3.
QUASI TRUSTEE.
The executor, who was also named
as devisee in a will, not attested so
as to pass real estate, entered into pos-
session of the real estate, expended
his own moneys iu improvements,
and died intestate. His administra-
trix took a transfer to herself of a
mortgage on the estate, and claimed
it as assets under an alleged arrange-
ment with the testator's widow, that
her husband took the estate in dis-
charge of a debt due from the testa-
tor. On a bill, filed by the testator's
heiress, the Court held that the exe-
cutor must account for the rents from
the testator's death, with an aUow-
ance for permanent improvements.
Nanney v. Williams, 22 Beav.
452 — 469, followed. Felly v. Bas-
eombe. 390
RAIL.
See Execution.
RAILWAY.
See Execution.
RAILWAY CLAUSES ACT.
See Deposited Plans.
Diversion (Permanent) op
Road.
RAILWAY COMPANY.
See Investment.
Will, 5.
736 REPAIRS,
REAL ESTATE.
See Charging Order.
Quasi Tevstss.
See Settlement.
Will, 1, 2, 5.
REBUILDING.
See Local Government.
RECEIPTS AND PAYMENTS.
See Account, 5.
RECTIFICATION.
See Marriage Settlement, 2.
Lease.
REDEMPTION.
See Opening Foreclosure
Decree.
REFORMATION OF AGREE-
MENT.
See Mistake.
REFUSAL.
See Account, Refusal to.
REGISTERED MORTGAGEES
OF SHIPS.
See Order and Disposition, 1, 2.
RELIEF AT LAW.
See Stay of Proceedings.
RENT.
See Lanlord and Tenant.
REPAIRS.
See Ejectment.
Specific Performance, 1.
SALE.
REPRESENTATION.
See Specific Performance, 2.
RESALE.
See Subpurchase.
RESCINDING CONTRACT.
See Mistake.
Specific Performance, 3.
RESIDUE.
See Indemnity.
Will, 2, 4.
RESIDUARY DEVISE.
A devise of residuary real estate
still specific, notwithstanding Wills
Act, 7 Will. 4, and 1 Vict. c. 26.
Eddells V. Johnston, 1 Giff. 29, and
Fearman y. Twits, I Giff. 130, fol-
lowed. Clark V. Clark. 702
RESIDUARY LEGATEE.
See Account, Refusal to.
Indemnity.
REVERSIONARY INTEREST.
See Covenant to Settle.
ROAD.
See Diversion (Permanent)
OF Road.
SALE.
See Account, 4.
Deposit.
Judgment Creditor.
Loss BY Executors.
Solicitor and Client.
SETTLEMENT.
SOLICITOR AND CLIENT. 737
SALE UNDER DIRECTION OF
COURT.
See Settled Estates Acts, 1854-
1856, 90.
SECOND MARRIAGE.
See Marriage Settlement.
SECURITY.
See Pension.
SECURITIES.
See Professional Adviser.
SEPARATE ESTATE.
See Partnership.
SEPARATE USE.
See Marriage Settlement.
SETTING BACK BUILDINGS.
See Local Government.
SETTLEMENT.
1. Where a married woman, who
prior to her marriage was entitled
under a will to a debt payable after
the death of her sister, secured on
land by the deposit of title deeds, by
deed acknowledged joined her hns-
hand in assigning her share and inte-
rest in the said debt, and the said
real security, in order to secure
moneys due by her husband — Held^
in a suit to administer the testator's
estate, that she was not entitled to a
settlement out of the proceeds of the
real estate. Williams v. Cooke. 343
2. A fund in court not reduced
into possession accruing in right of
the wife, on whose marriage no settle-
ment was made, and who was divorced
by a colonial court at the suit of the
husband — //eZJ, to belong to the wife
as against a mortgagee of her hus-
band, and also as against her children
claiming a settlement. Heath v.
Lewis. 665
See Covenant to Settle.
Marriage.
Marriage Settlement, 1, 2.
Post-nuptial Settlement,
1.2.
Surety.
Voluntary Settlement.
SHARE.
See Will, 4, 6.
SHIP.
See Order and Disposition, 1, 2.
SOLICITOR.
Where a solicitor was employed by
the next friend in establishing an
infant's title to certain land, the infant
having attained twenty-one,' the Court,
under the 23 & 24 Vict. c. 127, s. 28,
declared on petition so much of the
costs as remained unpaid a charge on
the land recovered. Bonser v. Brad-
shaw. '260
See Charging Order.
Solicitor and Client.
SOLICITOR AND CLIENT.
1. A purchase by solicitors of the
equity of redemption of their client's
property set aside, although another
solicitor had been called in, and the
defendants had ceased to act as soli-
tors just before the contract for pur-
chase : it appearing that the other
solicitor had, with the knowledge of
the defendants, not properly dis-
charged his duty, and that the de-
fendants had concealed from him an
important fact.
The intervention of another soli-
738 SPECIFIC PERFORMANCE.
STATUTES.
citor or adviser who with the know-
ledge of the purchaser, neglects or
does not properly discharge his duty,
is not sufficient to support a purchase
by his solicitor from nis client. Oibbs
y. Daniel, 1
2. A gift made by a client to his
solicitor during the subsistence of the
professional relation between them is
mvalid; therefore, where a client
during the subsistence of such relation
told his solicitor to retain a sum of
300/. out of moneys coming to the
client, on a bill by the client, for an
account the Court decreed a general
account, with a direction that the
defendants were not to be allowed the
said 300/., and ordered the defend-
ants to pay the costs of the suit.
&Brien t. Lewis. 221
8. A solicitor who has acted for
the plaintiff has a lien on costs under
a decree for payment of the costs to
his client after he has ceased to be
solicitor in the cause, and although he
has taken his client in execution for
the costs. G*Brien t. Lewis, 396
See Privileged Communication,
SOLID SILVER.
See Will, 3.
SPECIFIC PERFORMANCE.
1. Where a lessor agreed to let a
house and to put it in decorative re-
pair, but refused to fulfil his contract,
the Court at the instance of the lessee
decreed specific performance of the
agreement, with an inquiry whether
the agreement as to decorative repair
had been performed ; and if not, de-
creed that the defendant should com-
pensate the plaintiff in damages.
Samuda v. Lawford. 42
2. Where the vendors of a brewery
made various and inconsistent repre-
sentations as to the profits of the
concern which demanded investiga-
tion, for which the vendors afforded
every facility, and which the pur-
chaser in fact partially made, the
Court decreed specific performance.
Clarke v. Mackiniosh, Mackintosh
V. Clarke. 134
3. After a decree for specific per-
formance of a contract to purchase
for payment, and an attachment for
default, on motion by the plaintiff the
Court ordered the contract to be re-
scinded, and all proceedings stayed,
except as to such application to this
Court as might be made by the plain-
tiff to assess the damages occasioned
by the breach of contract by the de-
fendant.
FoHgno v. Martin, 16 Bear. 586,
followed. Sweet v. Meredith. 207
See Mistake.
SPECIFICATION.
See Patent.
STATUTES,
^ee Charging Order.
46 Geo. 4, c. 69 . . • 619
47 Geo. 3, c. 25 . . . 619
7 Geo. 4, c. Ill . . . 333
3 & 4 Will. 4, c. 27, s. 16 . 390
3 & 4 Will. 4, c. 42 . . 683
5 & 6 Vict. c. 45, 8. 18 . . 632
8 Vict. c. 18, s. 80 (Lands
Clauses Consolidation Act) 449
8 Vict. c. 20 (Railway Clauses
Consolidation Act)
10& 11 Vict. c. 34
11 & 12 Vict. c. 63
15 & 16 Vict. c. 688
17 & 18 Vict. c. 113
21 & 22 Vict. c. 98
c. 106, 88
24 & 25 Vict. 134
23 & 24 Vict. c. 38
• c. 127, 8.
25 & 26 Vict. c. 4
27 & 28 Vict. c. 112
262
262
688
181
278
39,41 619
622
416
622
619
515
28
SURETY.
TENANT FOR LIFE. 739
STAY OF PROCEEDINGS.
Motion by a defendant before de-
cree to restrain a co-defendant from
prosecuting an action or to stay all
proceedings in the suit on an aiii Jiivit
that the relief sought by the bill and
by the action was identical, refused
with costs. Rusaell v. The London^
Chatham, and Dover Railway Com'
pany. 403
See Specific Performance, 3.
STOCK-IN-TRADE.
/See Loss BY ExECOrORS.
SUB-PURCHASE.
Where a sub-purchaser, at an im-
proved price, applied by summons to
be substituted in the place of his
vendor (the original purchaser), who
resisted the application, the Court
refused to make the order, but, at the
su^estion of the trustees, ordered a
resale, on the terms that the original
purchaser pay the improved price
into court. Re Settled Estatet Acts,
1854 and 1856. 90
SUB-PURCHASER.
See Sub-purchase.
SUBSTITUTION.
See Sub-purchase.
SUCCESSION.
See Covenant to Settle.
SUPPRESSION OF TRUTH.
See Marriage Settlemfnt, 1.
SURETY.
A surety is entitled to the benefit
of the securities in the hands of the
creditor. Therefore, where a cre-
ditor, whose debt was] secured by the
bond of the debtor and his surety as
well as by a mortgage*of the equitable
life interest of the debtor and his wife
in certain real estate and policies of
assurance, assigned his debt, without
notice by himself or the assignee, to
the trustees of the settlement, who
sold under a power — Held, that the
surety was 'discharged to the amount
of the security lost.
Where acquiescence is relied on, it
must be shown that the person ac-
quiescing was aware of the thing in
which he acquiesced, and of the effect
of such aoquiesence.
Wheatley v. Baatow, 7 De G. M. &
6. 261 and 271 > considered. Strange
V. Fooka. 408
SURPRISE.
See Mistake.
SURVIVING TRUSTEE.
See Breach of Trust, 2.
SURVIVORSHIP.
See Will, 2, 4.
Title Deeds.
TEMPORARY DIVERSION OF
ROAD.
See Division (Permanent) of
Road.
TENANT AT WILL.
See Landlord and Tenant.
TENANT FOR LIFE.
See Account, 4,
Covenant to Settle.
Title Deeds.
740 TRUST TO SELL.
VENDOR AND PURCHASER.
TENANTS IN COMMON.
See Will, 2.
THREAT.
aS'^^ Pressure.
TITLE DEEDS.
Devise of residuary real estate to
trustees upon trust to permit testa-
tor's sister-in-law, if single, to receive
the rents for life without power of
anticipation, but, if either should
marry or die, then the single one or
survivor to take- the whole, but if
both married, on trust to sell and
divide the proceeds among testator's
nephews and nieces. The title deeds
having passed into the possession of
the tenant for life, on a bill filed by
the trustees, the Court having refused
to disturb the custody of the deeds.
Taylor v. Sparrow, 703.
/S'^e Order of Disposition, 1.
Settlement, 1.
TOWN COUNCIL.
See Local Government.
TOWNS IMPROVEMENT.
See Local Government.
TRADE FIXTURES.
See Lease.
TRANSFER ACT.
See Pension.
TRUST SO SELL.
See Account, 4.
TRUSTEES.
See Account, 2, 4.
Account, Refusal to.
Breach of Trust, 1, 2.
Loss by Executors.
Title Deeds.
TRUSTS.
See Settlement.
Marriage Settlement.
Will, I.
Account, 4.
ULTRA VIRES.
See Deposited Plans, 1, 2.
UNDUE INFLUENCE.
See Father and Child.
Professional Adviser.
Solicitor and Client, 1, 2, 3.
UNTRUE AVERMENT.
Where the bill prayed that the
rights of all parties interested might
be declared, and set forth the testa-
tor's will and codicil, and averred
that the defendant was imtruly de-
scribed in the codicil as testator's
next of kin and heir-at-law, and that
he had obtained probate on an untrue
allegation that the eiecutors were
dead, there being no distinct aver-
ment of the character in which the
plaintiff claimed — a demurrer was
allowed with leave to amend. Parker
V. Nickson. 306
See Misrepresentation.
USEFUL FOR COMMERCE.
See Patent.
VENDOR AND PURCHASER.
See Deposit.
WILL.
VESTING.
^mWill, 2.
VIADUCT.
See Depobited Plans, 1 .
VOLUNTARY GIFT.
See Father and Child.
VOLUNTARY SETTLEMENT.
A Tolantary settlement of personal
estate, executed in favour of a wife
and children, after commission of a
felony, but before and in fear of convic-
tion— Heldiavalid against the Crown.
Re Sounder's Estate. 179
VOUCHERS.
See Production.
WARD OF COURT.
See Marriage Settlement, 2.
WIFE.
See Husband and Wife.
Will, 4, 5.
WILL.
1. A bequest of all testators' s per-
sonal estate to his executrix, subject
to the payment of his just debts and
funeral and testamentary expenses,
was held, on the construction of the
Act 17 & 18 Vict c. 113, a sufficient
manifestation of an intention that a
real estate was not to be primarily
liable to a mortgage debt.
Woolstencroft v. Woolstencroft dis-
tinguished. Efio V. Tatham, 181
2. A testator gave his residuary
real and personal estate to trustees,
upon trust as to one-third for his son
and daughter as tenants in common ;
WILL.
741
his son*8 share to be vested at twenty-
four, and his daughter's on her mar-
riage with consent of her guardians ;
but in case his son should die under
twenty-four without leaving issue, or
his daughter without having been
married with such consent as afore-
said, then in trust for the survivor.
The son having attained twenty-
four, and the daughter twenty-one
without being married — Held that
they were entitled in equal moieties.
Booth V. Booth observed on. West
V. West. 198
3. Bequest by testator of all the
furniture (except plate and pictures)
which might be in a house mentioned
at his decease — Held to be confined
to articles of solid silver, and . not to
include a plated service in the said
bouse. Holden v. Ramsbottom. 205
4. Where a testator directed the
annual interest of his residue to be
divided into as many shares as there
were living children of T. and L. W.,
share and share alike, as they should
come of age; and in case any one
should die without children, his share
to devolve on survivors successively,
till the whole in^^erest came into the
bands of the grandchildren and great
grandchildren of T. and L.W. — Held,
that the children of T. W. living at
his death were entitled to the income
only, but that there was a gift by
implication to these children abso-
lutely, with a gift over of the share of
any grandchild who had died without
having had issue ; not absolutely, but
according to the gift of the original
share.
Where a testator, having granted
an annuity to his widow, under his
will directed that if she persisted in
any claim on the residue of his pro-
perty she was to forfeit the annuity —
Heidi the widow was not put to her
election, but was entitled both to her
dower and to the annuity. Wether ell
V. WetherelL 51
742
WILL.
WILL.
5. Where a testator devised land
to his widow Mary for life, remainder
to his son and Elizabeth his wife in
fee, who, during the life of the tenant
for life, conveyed the land by a deed
not acknowledged to a railway com-
pany— Held^ that the wife's interest
was within the 7th section of the
Lands Clauses Consolidation Act, and
passed to the company. Cooper v.
Gostling. 449
6. Where a testator, having claims
against his firm, directed his propor-
tion of capital invested in the busi-
ness to be converted into cash, such
cash to be paid over as realised (with
the exception of certain bequests
thereinafter mentioned) Xo a charity,
and requested his executors, as soon
as convenient after his decease, out of
the capital employed in the business
to pay the persons mentioned below
the following sums &c., the Court
held—
First, that the legacies were de-
monstrative, and not specific, and that
if the particular fund failed the de-
ficiency was payable out of the gene-
ral personal estate not specially given.
Secondly, that the proportion of
capital included not onlv the testa-
tor's share in the assets, but also the
debt due from the partner.
Smith V. Fitzgerald, 3 Ves. & B. 2,
observed on. Sevan v. The Attorney-
General. 361
See TiTLK Deeds.
FINIS.
CHARLRS JONEfl, PRINTER, WKST HARDINO STRRRT.
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